Ebr16 v Minister for Immigration & Anor
[2018] FCCA 982
•24 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 982 |
| 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 applicant’s migration agent but not passed on to the Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424, 424AA, 424A, 425, 426 |
| Cases cited: EBO16 v Minister for Immigration & Anor [2018] FCCA 980 EBQ16 v Minister for Immigration & Anor [2018] FCCA 981 Minister for ImmigrationvMaltsin [2005] FCAFC 118 Minister for Immigration v SCAR (2003) 128 FCR 553 SAAP v Minister for Immigration (2005) 228 CLR 294 SZFDE v Minister for Immigration (2007) 232 CLR 189 |
| Applicant: | EBR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3726 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
The application lodged on 22 December 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3726 of 2016
| EBR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
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. The applicant is the father of the applicant EBQ16 (Federal Circuit Court Proceedings No. SYG3725/2016), and the husband of EBO16 and grandfather of EBP16 (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.
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 EBO16 v Minister for Immigration & Anor [2018] FCCA 980 and EBQ16 v Minister for Immigration & Anor [2018] FCCA 981
Background facts relating to the applicant’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 12 April 2018.
The applicant is a national of Fiji who arrived in Australia on 23 September 2014.[3] On 12 November 2014, the applicant applied for the visa.[4] The applicant claimed to fear harm from the Fijian military.
[3] Court Book (CB) 15
[4] CB 1
The applicant claimed that his family was subject of torture by the military government and that his son was tortured and nearly killed. His son was accused by the military of stealing a camera from the army base at his school. The applicant claimed that after this, his house was raided by the military in search of the camera.[5]
[5] CB 21
The applicant claimed that he feared to return to Fiji as he would be tortured and possibly killed because he had been trying to bring the people accountable for his son’s beating to justice.[6]
[6] CB 21
On 6 March 2015, the delegate refused to grant the applicant the visa.[7] On 29 March 2015, the applicant applied to the Tribunal for review of the decision.[8]
[7] CB 39
[8] CB 57-58
On 6 September 2016, the Tribunal invited the applicant to attend a Tribunal hearing.[9] On 9 September 2016, the applicant’s migration agent sought an adjournment of the Tribunal hearing.[10] On 14 September 2016, the Tribunal refused the adjournment request and relevantly informed the applicant that the Tribunal member would first speak with him, EBQ16 and EBO16 together, before proceeding with individual hearings.[11] 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.
[9] CB 69-70
[10] CB 79-80
[11] CB 84
On 27 September 2016, the applicant’s migration agent provided to the Tribunal a statutory declaration of the applicant.[12] On 5 October 2016, the applicant’s migration agent provided further material in support of the applicant’s review application, including a letter from the director of the Pacific Indigenous Samaritan Association Inc (PISAI).[13] On the same day, the applicant attended a Tribunal hearing with the assistance of his migration agent. According to the hearing record, no witnesses were called.[14]
[12] CB 94-96
[13] CB 98-111
[14] CB 112-114
At the hearing the applicant claimed that the director of PISAI and members of the Fijian Native Government in Exile (FNGE) invited him to come to Australia for a visit.
On 19 October 2016, following the hearing, the Tribunal wrote to the applicant, inviting him to comment on inconsistencies between his evidence and that of his wife and son (the s.424A letter).[15] On 28 October 2016, the applicant provided a response to the Tribunal.[16] The particulars of the information and responses are set out in full at [28] of the Tribunal’s decision.[17]
[15] CB 126-129
[16] CB 133-138
[17] CB 150-153
Tribunal decision
On 2 December 2016, the Tribunal affirmed the decision of the delegate.[18]
[18] CB 145
The Tribunal set out the applicant’s claims and summarised the material provided by the applicant’s agent.[19]
[19] CB 146-150 at [8]-[27]
The Tribunal was concerned about the credibility of the applicant and considered that his credibility was a matter of central importance to its consideration.[20]
[20] CB 153 at [30]
The Tribunal put to the applicant, at the hearing, a number of concerns it had about his evidence:
a)the Tribunal put to the applicant he was able to leave Fiji without any difficulties. The applicant said that nothing happened as he had spoken with the soldiers only hours before he left;[21]
b)the applicant gave evidence that he had not joined any political organisations or movements in Australia. The Tribunal put to him that letters were provided indicating he was a member of the FNGE. The applicant said he was a member, but he did not know that it was a political party and thought it was an ordinary social group. The applicant gave evidence that his fear is not based on his attendance at these meetings.[22]
[21] CB 149 at [20]
[22] CB 149-150 at [22]-[24]
The Tribunal considered the applicant’s evidence and his responses to the s.424A letter:
a)the applicant, his wife and son provided inconsistent evidence in relation to the school his son attended. When this was put to the applicant, he responded that his son must have made a mistake and was nervous during the hearing. The Tribunal did not accept this explanation. While the Tribunal accepted that applicants are nervous attending hearings, it did not accept that his son would have advised the Tribunal of the incorrect school;[23]
b)the applicant, his wife and son gave inconsistent evidence about when the military first visited their home. The applicant’s son gave evidence that the military visited his home while he was at TAFE prior to any police complaints being made. His wife claimed the applicant made a report to the police in October 2013 and the military visited their home in September 2014. At the hearing the applicant gave evidence that he lodged a complaint with the police in July 2014 and the military visited his wife after he left for Australia. The applicant’s explanation for the inconsistencies clarified the time line. However, the Tribunal was not satisfied that the response explained the inconsistencies between his and his son’s evidence;[24]
c)the Tribunal put to the applicant the inconsistent evidence regarding where and when his son was collected after his claimed assault. In response, he explained that the reason for the lack of reporting by the school to the parents. The Tribunal concluded that had the applicant and his wife collected the son after the assault, they should have provided consistent evidence regarding the period he was away and from where he was collected;[25]
d)the Tribunal put to the applicant, his wife and son provided inconsistent evidence relating to his son’s work in Suva. In response, the applicant sought to clarify, stating that his son worked for a refrigeration and air conditioning company doing the practical requirement of his course. The Tribunal rejected this explanation, preferring the son’s evidence;[26] and
e)the Tribunal noted that the applicant told the Minister’s Department and Tribunal that he was not part of any political party, but later claimed he was a member of the SDL Party in Fiji. When put to him, he claimed that he was a member of the SDL and he had not advised the Minister’s Department. He said that he did not think that it was relevant. The Tribunal rejected this evidence, preferring the applicant’s evidence at the hearing, that he was not a member of any political party. The Tribunal concluded the applicant created this part of his claim in order to enhance his claims for protection.[27]
[23] CB 153-154 at [35]-[36]
[24] CB 154 at [37]-[39]
[25] CB 154 at [40]-[42]
[26] CB 155 at [43]-[44]
[27] CB 155 at [45]-[46]
The Tribunal considered material provided by the director of PISAI and the FNGE. The Tribunal did not place weight on this material. The Tribunal noted it contradicted the applicant’s evidence at the hearing.[28]
[28] CB 155 at [47]-[49]
The Tribunal considered the applicant’s claims singularly and cumulatively. It concluded the applicant was not a witness of truth and that he manufactured his claims to obtain the visa.[29]
[29] CB 156 at [50]
In considering whether there was a real chance of serious or significant harm occurring if the applicant 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 those who gave letters in support of the applicant.[30]
[30] CB 156-158 at [52]-[70]
The Tribunal accepted that the applicant went once to PISAI and FNGE meeting and donated monies, thinking it was a social organisation. It did not accept this demonstrated he was a member, and concluded he had a very low level involvement with the groups. On this basis, the Tribunal found that there was only a remote chance the applicant will be imputed with an adverse political profile.[31]
[31] CB 157 at [59]
The Tribunal accepted DFAT’s assessment that those at risk in Fiji are high profile public figures, and leaders of organisations which might be seen to challenge the government’s authority. The Tribunal noted its finding that the applicant had only engaged in very low level political activities. The Tribunal did not accept he would be viewed by the Fijian authorities as inciting sedition and urging political violence just because he attended one meeting.[32]
[32] CB 157-158 at [63]-[64]
The Tribunal considered the current political situation in Fiji. The Tribunal was not satisfied the applicant would face a risk of serious or significant harm due to the current political situation in Fiji.[33]
[33] CB 158 at [67]-[69]
The Tribunal found the applicant did not have a well-founded fear of persecution if returned to Fiji.[34]
[34] CB 158 at [71]-[72]
In the context of complementary protection, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk he would suffer significant harm.[35]
[35] CB 159 at [73]-[74]
The present proceedings
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 [EBQ16], [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 [EBQ16], [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 [EBQ16], [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 of 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.
(errors in original)
The application is supported by a short affidavit filed with it, made by the applicant’s former lawyer.
In addition to the solicitor’s affidavit, I have before me as evidence the book of relevant documents (court book) filed on 21 March 2017.
Only the Minister filed written submissions in accordance with procedural orders made by me. I invited oral submissions from the applicant. He supported the submissions which had been made by EBO16 but, in addition, sought to draw attention to correspondence allegedly sent by the applicants to their solicitor for onforwarding to the Tribunal. That correspondence allegedly corroborated the claimed attack on EBQ16 and the complaint the family had made to the Fijian police about it. The alleged correspondence did not appear in any of the material before the Court, and the applicant was unable to produce the correspondence or any evidence of it. I provided the applicant with the opportunity to file and serve additional evidence and submissions about that material. I provided a like opportunity to the Minister.
EBO16 filed a further affidavit on 31 May 2018 which I have taken into account. I have also taken into account a further affidavit and submissions filed by the Minister on 21 June 2018.
Consideration
There is no substance to the grounds of review advanced. 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 his 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.[36] The applicant must demonstrate that he was denied a real and meaningful opportunity to give evidence and present arguments.[37]
[36] See SAAP v Minister for Immigration (2005) 228 CLR 294, 304 at [21] per Gleeson CJ
[37] See Minister for Immigration v SCAR (2003) 128 FCR 553, 561 at [37]
As noted above at [8], the applicant was invited to attend a hearing before the Tribunal and he was informed, in advance, that the Tribunal would speak with him, EBQ16 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.
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.
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 wife and son, 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.[38]
[38] See ss.424, 424AA and 424A of the 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 his wife and son. 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.
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 his 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 his right to call witnesses.[39] In addition, as noted above at [9], 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.[40] 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.[41] As a result, in my view, the applicant was afforded a reasonable opportunity to call evidence from his family as witnesses.
[39] CB 91
[40] Cf. Minister for ImmigrationvMaltsin [2005] FCAFC 118
[41] 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.[42] 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 wife and son for the purpose of determining his application for review. However, 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.
[42] 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.[43]
[43] 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 his wife and son, 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.[44] The applicant’s assertion in ground 3 does not establish any jurisdictional error by the Tribunal.
[44] 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 him and rejected the applicant’s claims on the basis of the evidence before it.[45]
[45] See CB 148 at [13]; 150-153 at [28]
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.[46] However, the Tribunal expressly stated that it had considered the information provided by the director.[47]
[46] See CB 105, 107 at items 4, 5 and 32
[47] See CB 157 at [60], [63]
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.[48] 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.
[48] See NAHI at [11]
The additional material
The applicant’s wife has taken up, on his behalf and on behalf of their son, the opportunity afforded them by my orders made on 19 April 2018 to file evidence and submissions to support the assertions he made orally at the trial. So has 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 relevance sense, and if so, the second is whether the migration agent’s actions stultified the Tribunal’s jurisdiction.[49]
[49] 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.[50]
[50] 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”.[51] 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.
[51] 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;[52] SZNNJ v Minister for Immigration.[53]
[52] [2015] FCA 134
[53] [2009] FCA 1356
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any 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
Date: 24 July 2018
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