EFT24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1172
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFT24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1172
File number: PEG 213 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 November 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (class XA) (subclass 866) visa - claim of bias – Tribunal findings based on evidence before it – whether the applicant would be subject to double jeopardy if returned to the receiving country – no merit – no jurisdictional error established – application dismissed. Legislation: Criminal Code Act 1995 (Cth) s 307.1(1).
Migration Act 1958 (Cth) ss 36(2)(a),36(2)(aa), 65, 501F
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
CRJ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 932
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 4 November 2024 Place: Perth Solicitor for the Applicant: Self-represented litigant Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Mr Mayne (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 213 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFT24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’
2.The name of the Second Respondent be amended in the title of the proceeding to ‘Administrative Review Tribunal’.
3.The application is dismissed.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 31 May 2024. The Tribunal affirmed the decision of a delegate of the Minister for Home Affairs (“delegate”) on 14 February 2024 to refuse to grant the applicant a Protection (class XA) (subclass 866) visa (“protection visa”).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The applicant is a male citizen of Nigeria in his early forties.
On 19 September 2013 he was granted an offshore Prospective Marriage Visa (class TO) (subclass 300). He first arrived in Australia on 5 October 2013 and married his former wife in April 2014. He was granted an onshore Partner (class UK) (subclass 820) visa (“partner visa”) on 17 July 2014. He has two children from this marriage born in October 2014 and December 2016 respectively.
The applicant also claims responsibility for his two children born to another former-spouse in January 1999 and April 2002 in Australia.
The applicant departed Australia on 26 December 2014 and later returned on 29 January 2015. His partner visa was cancelled under s 501F(3) of the Migration Act 1958 (Cth) (“the Act”) on 17 June 2020.
The applicant sought to revoke the cancellation of the partner visa. However, this did not occur. He then applied to the Tribunal for a review of the visa cancellation. The Tribunal affirmed the visa cancellation on character grounds. The applicant sought judicial review of the Tribunal’s decision but the application was ultimately dismissed on 18 December 2023.
In 2017 the applicant was convicted of a serious drug offence, being one count of importing a a commercial quantity of a border controlled drug, namely methamphetamine, contrary to subsection 307.1(1) of the Criminal Code Act 1995 (Cth). The applicant was sentenced to a term of 10 years imprisonment with a 7-year non-parole period. On appeal, this was reduced to 8 years imprisonment with a non-parole period of 5 years. The applicant has competed this sentence of imprisonment and has been in immigration detention since his release from prison.
On 13 January 2024 the applicant applied for the protection visa.
The applicant attended an interview on 25 January 2024 by video conference. The applicant sought to have his brother attend the interview, however, a delegate did not consider it appropriate in the circumstances. The applicant’s brother had been mentioned in and was directly relevant to the applicant’s claims for protection. His involvement included the provision of a letter of support.
On 14 February 2024 the protection visa application was refused under s 65 of the Act. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for by s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant as provided for in s 36(2)(b) or s 36(2)(c) of the Act. The delegate therefore found the applicant failed to satisfy the criteria in s 36(2) of the Act.
The applicant applied to the Tribunal for a review of the decision on 16 February 2024.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The applicant submitted he has a well-founded fear of persecution due to his membership of a particular social group (“PSG”). The PSG had been characterised as being part of:
(a)a drug operation from Nigeria and assisting during police investigations and giving testimony as a witness;
(b)returnee Nigerian nationals convicted of an overseas drug offence; and
(c)being a member of the Indigenous People of Biafra (“IPOB”) minority.
The first claim is based on the applicant’s Nigerian nationality, his conviction of a Nigerian drug operation overseas and status as a police informant. It was submitted that the applicant cooperated with Australian law enforcement authorities and was assessed as providing ‘medium-level assistance’. The applicant outlined his fear of drug lords knowing about his involvement in the drug importation, being arrested in Australia, as well as providing evidence against a co-offender. It was submitted the delegate’s decision focussed on the offence occurring 8 years ago, and the applicant departing Nigeria 15 years ago. The submission refers to recent text messages “with unknown individuals” sent to the applicant by his brother which purportedly was evidence of unknown individuals threatening to kill the applicant.
The second claim derives from “Membership of a certain [sic] social group: Returnee Nigerian nationals convicted of an overseas drug offence”. The submission asserted that the Nigerian police and the drug enforcement agencies will most likely be informed upon the applicant’s return to Nigeria and that the applicant will be considered to be a Nigerian national with an overseas drug conviction within the meaning of Decree 33 and Section 22 of the National Drug Law Enforcement Agency Act (“NDLEA Act”) of Nigeria. The NDLEA Act provides that any person whose outward journey originates from Nigeria and is found to have imported prohibited narcotic drugs into a foreign country shall be guilty of an offence of exportation of drugs, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation of such a narcotic drug in that foreign country.
The third claim was the applicant’s well-founded fear of persecution due to his IPOB membership. The applicant provided a letter as evidence of his membership since April 2012 which made reference to donations he made to IPOB. The applicant’s representative made reference to reports by the Department of Foreign Affairs and Trade (DFAT). They included references to reports which state ordinary members of IPOB, the Movement for the Actualization of the Sovereign State of Biafra and other Biafran secessionist organisations who participate in political demonstrations or rallies face moderate risk of being subjected to violence by state security forces. Although IPOB was banned in Nigeria as a terrorist organisation in 2017, that decision was overturned in October 2023 by the High Court in Enugu. They further claimed that country of information (COI) contained reports on troops killing IPOB members and destroying its supreme headquarters.
The applicant’s core claims can summarised as follows:
(1)First, he fears he will be targeted for serious harm at the hands of his co-offender or persons associated with his co-offender, including his family, agents or associates or members of the drug syndicate.
(2)Second, he claims he fears he will be subjected to double jeopardy in Nigeria and will face conviction and punishment in accordance with the relevant law in Nigeria because of his involvement in the failed drug importation enterprise from Nigeria to Australia.
(3)Third, he claims he faces a real chance of serious harm for reason of his membership of and financial support to IPOB.
The applicant’s representative made further submissions in relation to the risk of ‘significant harm’ as defined in s 36(2A) of the Act. If the applicant is returned to Nigeria, he faces a real risk of torture and cruel, inhumane or degrading treatment or punishment.
The applicant attended two hearings in April 2024. At the first hearing, he was represented and had called two witnesses to give oral evidence and answer questions. An interpreter who spoke the Igbo and English languages attended to facilitate proceedings. The hearing was adjourned and was resumed in April 2024. At the second hearing, the applicant, his representative and the same interpreter attended.
The Tribunal affirmed the decision not to grant the applicant a protection visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for by s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant as provided for in s 36(2)(b) or s 36(2)(c) of the Act. The delegate therefore found the applicant failed to satisfy the criteria in s 36(2) of the Act.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are contained in the amended application filed on 20 September 2024. They are reproduced as follows:
1. Continued Judicial Scrutiny and Alleged Tribunal Overreach: The AAT’s decision raises concerns regarding procedural fairness and potential jurisdictional overreach.
2. Tribunal Exploitation and Dereliction of Duty: A Case of Misguided Political Expediency: The Tribunal ignored crucial facts about my testimony against my co-offender.
3. The Tribunal, in a display of overzealous political self-preservation, prioritized the safeguarding of its integrity and ideologies over the paramount consideration of my safety, thereby abdicating her duty to impartially adjudicate the matter at hand.
4. The applicant is confronted with the imminent peril of being subjected to duplicative jeopardy should the enforced deportation to the Federal Republic of Nigeria be executed, thereby infringing upon the fundamental principles of non bis in idem.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He did not request the assistance of an interpreter and the Court was satisfied that the applicant had more than sufficient English language skills to participate in a meaningful way in the hearing.
Whilst the Court Book was received into evidence, an Affidavit of the applicant sworn 18 September 2024 was rejected on the basis it sought to introduce new evidence that was not before the Tribunal.
At the commencement of the hearing, the Court confirmed that the applicant had been provided with a copy of the relevant Court Book together with the respondent’s written submissions. The Court also confirmed that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.
The Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review.
The applicant provided to the Court two written submissions. In his oral submissions, the applicant put to the Court the following:
·He felt it was unfair that the Tribunal had brought up issues in relation to his non-compliance with the Visa conditions in Malaysia. It amounted to self-incrimination.
·He suggested that the Tribunal member had already made up his mind in relation to the applicant in this infected the Tribunal’s credibility assessment of the applicant.
·The Tribunal failed to take account of the applicant’s life was in danger in Nigeria. There is no accountability in Nigeria.
·The applicant noted he had spent five years in prison and spent a further three years in immigration detention. During that time, he had no issues in relation to misbehaviour. He claimed he was rehabilitated as a result of the time he had spent in custody
·The applicant pointed to his mental health problems that he felt were not accepted.
·He asked the Court to simply give him a fair go.
THE FIRST RESPONDENT’S SUBMISSIONS
On behalf the respondent, it was submitted there was no error in the manner in which the Tribunal dealt with the information regarding the applicant’s non-compliance with Visa conditions whilst residing in Malaysia. The Tribunal was not fixated on the Malaysian information. At [97] that information was taken into account, along with other information, which caused the Tribunal to have doubts as to the credibility of the applicant’s claims. The Tribunal considered the information in some detail and simply found it went to his overall credibility. The Tribunal was properly entitled to take this evidence into account in relation to the applicant’s admitted past breaches and “conceded dishonesty”.
At [102] onwards, the Tribunal rejected the applicant’s three claims of fearing harm. In so doing, it provided specific reasons which did not arise from the Malaysian evidence. As there was no specific criminal offence that related to the Malaysian evidence, no procedural fairness obligation arises in relation to warning the applicant as to the protection against self-incrimination.
It is clear at [94] the Tribunal took account of the applicant’s mental health issues.
In relation to the grounds of judicial review set out in the originating application, ground one appears to be a claim of a breach of procedural fairness requirements noting it talks about ’judicial overreach’. No particulars are provided in relation to precisely what procedural requirement was breached. The first respondent submitted there is no error in relation to procedural fairness apparent in the decision record. It is clear that the Tribunal raised the issue of the Malaysian evidence with the applicant in the course of the hearing which the applicant’s representative made submissions to the Tribunal about.
Any suggestion that Feutrill J adjudicated in favour of the applicant in CRJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 932, due to findings the Australian government solicitors submissions were tainted by fraudulent conduct tendering falsified records of the IHMS, is a grossly inaccurate and misguided description of the reasons for the decision in that matter.
In relation to his “two issues for determination” first, there is no indication from the Tribunal’s reasons that any issue was raised before it about the IHMS medical records being fraudulent.
The Tribunal was aware of the applicant’s claim that he suffered mental health issues and took it into account at [94].
Any suggestion that the Tribunal denied the applicant procedural fairness by not convening a second hearing as a result of the “fraudulent IHMS reports” is unclear bearing in mind these reports appear to have been provided by the applicant’s representative and no submission was made as to their inaccuracy.
Ground Two
Ground two is a claim of “tribunal exploitation and dereliction of duty: the case of misguided political expediency: the Tribunal ignored crucial facts about my testimony against my co-offender”. The respondent interprets this to be a claim that the Tribunal erred by downplaying the level of threat the applicant faced having cooperated with authorities in the prosecution of his co-accused in the criminal proceedings. The applicant also seems to suggest the Tribunal’s approach in this regard was the product of bias and malpractice by the Tribunal.
The first respondent submitted there was no error in the Tribunal’s decision. The Tribunal considered the applicant’s claim of risk which he said he faced having cooperated with authorities. The Tribunal found that there was not a real chance the applicant will suffer serious harm. This was a matter for the Tribunal to decide on. The complaint appears to be little more than disagreement with the Tribunal’s findings. Further, the applicant does not identify what “crucial facts” the Tribunal failed to consider.
Ground Three
The third ground is that “the Tribunal, and the display of overzealous political self-preservation, prioritise the safeguarding of its integrity and ideologies over the paramount consideration of my safety, thereby abdicating her duty to impartially adjudicate the matter at hand”.
The respondent noted that it is not clear precisely what challenge this ground relates to. The Tribunal gave cogent reasons for its conclusions about the risk of harm the applicant came to fear at [102] – [130] of its decision record. There is no indication that the Tribunal conducted to review and conclude the matter other than on a proper consideration of the evidence or that the Tribunal had “ideologies” that interfered with its impartial fact finding.
There is simply no basis for the applicant’s submission that the Tribunal’s approach was “tainted by a hypocritical application of double standards”. The applicant does not identify what that evidence is. The Tribunal correctly considered whether or not the applicant met the grounds for the granting of a protection visa.
Ground Four
The fourth ground is that “the applicant is confronted with the imminent peril of being subjected to duplicative jeopardy should be enforced deportation to the Federal Republic of Nigeria be executed, thereby infringing upon the fundamental principles of ‘non bis in diem’”.
This ground appears to challenge the findings of the Tribunal. The firs respondent submitted the applicant would not be in danger of double jeopardy if returned to Nigeria because first, any subsequent dealing with him by Nigerian authorities would not be persecutory because it would not involve the non-discriminatory imposition of a law of general application [111] – 116]. Second, the prospect of the applicant being prosecuted under Nigerian law for drug crimes in Australia was remote: [117]-[118].
In terms of the applicant’s reference to “subsequent developments”, there is no evidence that there existed more recent and relevant country information reports that the Tribunal should have obtained but did not, noting the Tribunal relied upon country reports including a DFAT report from January 2024, five months before the Tribunal’s decision.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
Ground one
Ground one is a claim which appears to contend that there was a lack of procedural fairness. The Court does not accept this contention. The Tribunal was properly entitled to take into account, when considering the applicant’s overall credibility, his admitted past breaches of immigration law in Malaysia and his conceded dishonesty. The Court is satisfied that these admitted breaches by the applicant were in no way dispositive of the applicant’s claims for a protection visa in Australia.
The Court does not accept that there was any falsified evidence identified by the Tribunal in the IHMS material that was introduced, nor was such a claim made. The Tribunal was aware of the applicant’s claims that he suffered from mental health issues and took this into account.
The Court is satisfied that no issue in relation to the applicant arose in relation to a breach of self-incrimination requirements as there was no clear criminal offence contemplated, so the need to warn the applicant that he was not required to incriminate himself never arose. Ground one has no merit.
Ground Two
Ground two is a somewhat difficult ground to follow and appears to be that the Tribunal ignored crucial facts about the applicant’s testimony against his co-offender. It also seems to suggest the Tribunal’s approach was a product of bias and malpractice by the Tribunal.
First, the Court is not satisfied that the Tribunal ignored any crucial facts about the applicant’s testimony in relation his co-offender. This claim was dealt with comprehensively at [102] – [108] of the Tribunal decision record. The Court is satisfied that the Tribunal’s conclusion was open to it on the evidence before it and for the reasons it gave. This aspect of the ground has no merit.
Secondly, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case that bias will be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached their task other than with a mind open to persuasion: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
No particulars, other than the bare assertion, are provided. For this reason alone, this aspect of ground two is liable to dismissal.
A fair reading of the entirety of the Tribunal’s decision record does not raise any evidence of bias against the applicant. If anything, this aspect of the ground consists merely of vehement disagreement with the factual conclusion arrived at by the Tribunal. Ground two has no merit.
Ground Three
Ground three is difficult to understand and appears more to be a generalised criticism of the Tribunal as it did not find in the applicant’s favour. The Court cannot understand how there is a factual basis for the claim that the Tribunal’s approach was “tainted by hypocritical application of double standards”.
The Court is satisfied that the Tribunal considered all of the evidence that was available, including that which supported the applicant’s rehabilitation as well as the merits of his case. In the absence of the applicant identifying some matter which was ignored such that there was jurisdictional error, this ground cannot be sustained. Ground three has no merit.
Ground Four
Ground four is a claim of double jeopardy should the applicant be returned to Nigeria. As pointed out by the respondent, the Tribunal found at [109] – 119] that the applicant would not be subject to double jeopardy. Further, any subsequent dealing with him by Nigerian authorities would not be persecutory because it would involve the non-discriminatory imposition of the law of general application, and further, it was likely the applicant would be prosecuted for drug crimes committed in Australia for which he had already been punished. Again, the Court is satisfied this conclusion was open to the Tribunal based on the evidence that was before it for the reasons it gave. Ground four has no merit.
DETERMINATION
As the applicant is unrepresented, the Court has perused the Tribunal decision record together with the supporting papers contained within the Court book. The Court is unable to ascertain any unarticulated jurisdictional error. In these circumstances the application must be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 November 2024
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