EDV17 v Minister for Immigration

[2018] FCCA 588

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 588

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal disregarded the applicant’s submissions – whether the Tribunal misunderstood the applicant’s claims – whether the Tribunal failed to give logical explanations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: EDV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2889 of 2017

Judgment of: Judge Street

Hearing date: 8 March 2018

Date of Last Submission: 8 March 2018

Delivered at: Sydney

Delivered on: 8 March 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2889 of 2017

EDV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 August 2017 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Jordan and his claims were assessed against that country. The applicant arrived in Australia on 9 October 2005 as the holder of 570 Student visa. The applicant was subsequently granted four 572 Student visas after he arrived in Australia and the last was granted on 30 March 2012 in effect until 15 March 2013. The applicant lodged a further application for a 573 Student visa on 22 February 2013 and the application was refused on 27 March 2013. The applicant sought a review of that refusal on 28 March 2013, which was affirmed by a differently constituted Tribunal on 24 December 2013.

3. The applicant then sought Ministerial Intervention on 9 January 2014 and a decision was made not to consider the applicant’s application on 6 June 2014. The applicant did not lodge an application for a protection visa until 10 April 2013.

4. The applicant claimed to fear harm on return to Jordan because he publicly criticised the Jordanian Government. The applicant claimed he had been involved in many religious and political discussions in Australia with the Sunni religious group and the ideas and principles of Hizb ut-Tahrir ("HuT”) and had become convinced that the political system in Jordan is incorrect and corrupt.

5. The applicant claimed that he has been actively expressing his political opposition to the Jordanian Government in Australia. The applicant further claimed that his medical condition means that he cannot control himself verbally when he is convinced of something and is unable to judge when expressing his opinions, which is likely to get him into trouble. The applicant, at the protection visa interview with the delegate, claimed that he no longer had any involvement or interest in HuT as he did not share their religious views. The applicant also claimed to fear harm because he had publicly criticised King Abdullah of Jordan.

6. The delegate made adverse findings in relation to the applicant’s claims on 26 August 2015 and found the applicant failed to satisfy the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicant applied for review to the Tribunal on 16 September 2015. The applicant was invited to and attended a hearing on 31 July 2017 to give evidence and present arguments. The Tribunal also received telephone evidence from a particular person. On 14 August 2017, the Tribunal rejected the applicant’s core claims for protection on the basis of adverse credibility findings.

2. The Tribunal took into account the letters the applicant provided attesting to his medical condition, which were summarised as anxiety and obsessive compulsive disorder, bordering on psychotic. When assessing his credibility, the Tribunal found that the applicant was not a reliable, credible or truthful witness. The Tribunal found that the applicant fabricated his claims in order to be granted a protection visa. The Tribunal found it did not accept that the applicant had been publicly critical of King Abdullah while in Australia, noting his claim to have publicly criticised the King was not raised during his protection interview and that the applicant relied entirely on his oral evidence which the Tribunal found not to be credible.

3. The Tribunal did not accept the applicant had an association with HuT, and found it implausible that the applicant could select only the political and not the religious aspects of HuT given that HuT looks to the radical and comprehensive implementation of Islam after seizing authority. The Tribunal took into account country information in that regard. The Tribunal did not accept the applicant had ever been involved in incidents with members of the Jordanian community in Australia, nor that he has made anti-royal comments in Australia.

4. The Tribunal did not give much weight to the letters provided by the applicant in support of his claims, as the letters did not refer to the applicant being critical of the King but rather referred to his criticisms of the Jordanian Government. The Tribunal also placed little weight on the evidence of the witness who gave evidence by telephone as he had only heard second hand about the applicant’s involvement in an alleged fight at a Lakemba mosque as a result of allegedly criticising the King. The Tribunal also took into account an inconsistency in this regard with the applicant’s own evidence.

5. The Tribunal referred to the fact that the applicant’s claim for protection on the basis that he had criticised the Jordanian Government in Australia was raised a month after he had been advised that his failed student visa application would not be considered. The Tribunal referred to country information and was not satisfied that criticising the Jordanian Government would lead to disputes within the community in Australia, given that dissatisfaction with government is a normal part of intra-community dialogue and would be so in Jordan. The Tribunal found the applicant had no social media presence or profile and that if he were to criticise the government on return to Jordan it would be done in private.

6. The Tribunal accepted that the applicant had mental issues. On the basis of country information, noting that the applicant’s parents and siblings live in Jordan, the Tribunal was satisfied that the medical and social system in Jordan would be able to help him. Having considered the applicant’s claims singularly and cumulatively, the Tribunal did not accept the applicant had a well-founded fear of persecution for any Convention reason and found the applicant failed to meet the criteria for complementary protection and affirmed the decision under review.

Before the Court

1. On 23 October 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant had read, with the assistance of the interpreter, a written summary of six points, in substance reflecting the six grounds identified in the application.

5. The grounds in the application are as follows:

   1. In reference to HuT the RRT found at point 23 of decision record that “…one could not separate their religious and political views.” And that there is “…no difference between the two…”. At point 14 I clearly separated by stating I agree with the political view to topple heads of state but not the religious view for a replacement with an Islamic State. At point 31 the RRT found my claim “…implausible…given the two are inseparable…” The RRT completely disregarded my explanation and made no attempt to understand how I was able to separate the political from the religious view.

   2. At point 14 I clearly said HuT does not form part of my claims but the RRT continued to use evidence of my attendance and views to make adverse findings.

   3. At point 32 the RRT made adverse findings based on the fact that I did not have any written evidence “…such as social media…or emails” At points 12. 13 and 15 I repeatedly spoke about my lack of ability to verbally control myself. My verbal outbursts are also addressed in my medical reports. The RRT misunderstood my claims which are predominantly based on my lack of verbal control yet it was seeking written evidence of political opinion.

   4. At point 19 I clarified that using the work the King could also relate to my verbal opinion of the Government. Effectively the words are used interchangeably. At point 14 I said I agreed with toppling of heads of state and did not specify the King. At point 32 the RRT did not accept that I meant the King when I referred to government but gave no reason why it was not accepted.

   5. At point 33 the RRT did not accept that I am publicly opposed to the King and did not give reasons. At point 35 the RRT finds “…it is plausible that he has criticised the government of Jordan whilst in Australia…” The RRT gave not logical explanation why it accepted one and not the other.

   6. At point 18 the RRT found that there have been improvements in mental health care in Jordan. The RRT did not consider how accessible this health care is for me and my condition and more importantly that my political crime will overshadow referral to healthcare or concessions based on my mental health as I referred to in point 17 or the RRT decision record.

Ground 1

1. What was said in relation to the six points closely matched the six grounds. The applicant contended, first, that the Tribunal had disregarded the applicant’s explanation in relation to the difference between the political and religious views of HuT and had misunderstood his claim. The applicant, through his oral submission, took the Court to what was said in paragraph 23 by the Tribunal concerning asking the applicant about agreeing with HuT political views but not their religious views. The Tribunal in that regard expressly refers to putting to the applicant that there is no difference between the two and the applicant’s response was that he claimed to have been introduced by friends in a coffee shop and that those persons knew he attended HuT meetings and that he met them at the mosque.

2. The applicant disagreed with the adverse finding in paragraph 31 that he did not have an association with HuT and disagreed with the observation referring to his evidence of being influenced by the political but not the religious opinion and the Tribunal’s finding that HuT looks to the radical and comprehensive implementation of Islam after seizing authority and found it implausible that the applicant could select only the political and not religious aspects of HuT given the two are inseparable. The finding by the Tribunal in that regard was open to the Tribunal and does not reflect any misunderstanding of the applicant’s claims. Nor do the Tribunal’s reasons support the applicant’s assertion that the Tribunal disregarded his explanation. Rather, the Tribunal made an adverse credibility finding in the context of circumstances where the Tribunal provided reasons in support of its adverse credibility findings as summarised above. No jurisdictional error as alleged in ground 1 is made out. No jurisdictional error is made out by what was said by the applicant from the bar table described as point 1.

Ground 2

1. In relation to point 2, the applicant contended that the Tribunal had reasoned adversely in relation to his claims because he was not a member of HuT. The Tribunal’s reasons reflect raising with the applicant his alleged involvement with HuT and his alleged political views associated with HuT were part of the basis upon which the applicant claimed to fear harm. Given his medical condition, it was relevant for the Tribunal to take into account the applicant’s claims in respect of his views alone with HuT at a political level and it was open to the Tribunal to make an adverse finding in relation to the applicant’s contention that he could distinguish between the political and religious side of HuT in his identification with the same. That finding was both logical and reasonable.

2. It was open to the Tribunal on the material before it to find that that distinction was implausible. The applicant’s alleged identification with HuT was part of the claims in respect of which the Tribunal made dispositive findings that were open to the Tribunal. No jurisdictional error is made out by either ground 2 or point 2 raised by the applicant orally.

Ground 3

1. In relation to the third point raised by the applicant, the applicant took issue with the Tribunal’s reasoning that took into account the absence of any social media, letters, texts or emails indicating that the applicant had publicly criticised King Abdullah. Given the nature of the applicant’s claims, that was a relevant consideration for the Tribunal to take into account. The applicant’s disagreement with the Tribunal taking that matter into account does not identify any relevant jurisdictional error and it was open in that regard to the Tribunal to find that the applicant has no social media presence or profile and if he were to criticise the government on return it would be done in private and hence he would have no public profile. Those findings were logical and reasonable.

2. The applicant also complained in that regard that his mental condition impacted on his ability to control himself and that the Tribunal had misunderstood his claim. The Tribunal’s reasons do not reflect any misunderstanding of the applicant’s claims in that regard, but rather reflect adverse findings in respect of the applicant’s credit because of inconsistencies, delay and timing of the application for protection. The Tribunal also found that as the applicant has a mental condition the authorities would take that into account if criticisms wherever made were to be made in the public sphere. It was in that context that the Tribunal was not satisfied that there is a real chance that the applicant would suffer serious harm if he were to return to Jordan. No jurisdictional error is made out by ground 3 or by point 3 raised by the applicant.

Ground 4

1. In relation to point 4, the applicant took issue with the Tribunal’s adverse credibility finding by reason of the applicant not referring to the King in the context of his claim for protection and his alleged abusing of the King and referred to the applicant’s allegation that this was a mistake. The Tribunal’s reasons expressly refer to raising with the applicant that it was put to him during the interview that he told a person that his application was written down and read back to him and that that was inconsistent with his assertion that the agent had made a mistake. The Tribunal took into account the absence of any claimed abuse of the King in its adverse findings. That was both logical and reasonable. The adverse findings by the Tribunal in that regard were open to the Tribunal. No jurisdictional error is made out by the alleged point 4 or by ground 4.

Ground 5

1. In relation to point 5, the applicant alleged that there was inconsistency in the Tribunal’s reasons which was illogical or unreasonable. The applicant took the Court to the finding in paragraph 33 that the Tribunal did not accept he is publicly opposed to the King or makes anti-royal comments in Australia and follows that he has never been involved in incidents with members of the Jordanian community. The applicant alleged that it was inconsistent for the Tribunal to find in paragraph 35 that it is plausible that he has criticised the government of Jordan whilst in Australia. The Tribunal noted that his protection claim based on criticising the Jordanian Government followed the month after he was advised that his student visa application would not be considered.

2. The reference to the circumstances in which the claim was raised of criticising the government and it being plausible, was not inconsistent with the adverse finding made in paragraph 33. The adverse finding concerned a different topic being the King and was open to the Tribunal and cannot be said to lack an evident and intelligible justification. That adverse finding was not illogical or unreasonable given the reasons provided by the Tribunal in support of the adverse finding in respect of the applicant’s credibility as summarised above. No jurisdictional error is made out by point 5 or by ground 5.

Ground 6

1. In relation to point 6, the applicant disagreed with the accessibility of healthcare for the applicant. The applicant in his oral submissions took the Court to the finding in paragraph 18 concerning the country information and the putting of money into health facilities and training in Jordan and that given the high profile health issues it would be strange that someone with mental health issues would be punished by the police for criticising the King. The applicant also referred to paragraph 17 and the proposition that the intelligence agencies would realise he was a person with mental health issues and not a threat to the regime and the applicant’s claim that anyone who spoke ill of the King would be punished within minutes and no consideration would be given to mental health conditions.

2. On the face of the Tribunal’s reasons, the Tribunal did consider the applicant’s claims in relation to mental health and his assertion that he would, because of that, make adverse comments of the King in public. The Tribunal made dispositive findings in relation to the applicant’s claims in that regard that were open to the Tribunal. Those findings were logical and reasonable. It was also relevant to the Tribunal to take into account the country information in relation to mental health facilities. The applicant’s disagreement with the Tribunal’s adverse findings does not identify any jurisdictional error. I accept the first respondent’s submission that point 6 and ground 6 are, in substance, an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by point 6 or by ground 6.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  25 May 2018