Egv17 v Minister for Immigration
[2018] FCCA 1697
•27 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EGV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1697 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| Cases cited: CHW16 v Minister for Immigration [2017] FCA 762 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZVFW [2017] FCAFC 33 Minister for Immigration v Wu Shan Liang [1996] HCA 6 |
| Applicant: | EGV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2960 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Nanson of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2960 of 2017
| EGV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 25 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 18 June 2018.
The applicant is a Jordanian citizen, born on 15 May 1996, who arrived in Australia, together with his father, on 14 March 2015 as the holder of a Subclass 600 Visitor visa.[1]
[1] Relevant Documents (RD) 48, 50.
On 29 June 2015, the applicant lodged an application for the visa. [2]
[2] RD 1-44.
The applicant’s claims for protection arose from a romantic attachment he had with a single woman from a family who belonged to a religiously conservative tribe in Jordan. On 16 October 2014, the applicant claimed he was attacked by this woman’s brother. He was later threatened with death by family members and feared being killed should he return to Jordan.[3]
[3] RD: 37-40, 49, 54-55.
On 17 March 2016, the delegate refused the application. The delegate accepted that the applicant had a fight with the young woman’s brother as claimed but did not accept that he later received death threats or that he departed Jordan because he feared for his personal safety.[4] Accordingly, the delegate was not satisfied the applicant faced a “real chance” of persecution or a personal risk of significant harm were he to return to Jordan.[5]
[4] RD: 54.
[5] RD: 56-57.
On 12 April 2016, the applicant applied for review of the delegate’s decision.[6] On 7 August 2017 he attended a hearing before the Tribunal.[7]
[6] RD: 58-59.
[7] RD: 94-95.
Before the Tribunal, the applicant claimed he had also been threatened by three people who were armed with a gun. It was this incident which prompted the applicant to leave Jordan.[8]
[8] RD: 139 at [21]-[22].
Tribunal decision
The Tribunal found the applicant’s evidence regarding his claims “to wholly lack credibility”. The Tribunal did not find the applicant to be a “reliable, credible or truthful witness” and considered that he had “fabricated his entire claim and lied under oath in order to be granted a protection visa”.[9]
[9] RD: 142 at [39].
First, the Tribunal did not accept the applicant had had a relationship with a young woman which led to him becoming a target for serious harm. From the evidence before it the Tribunal considered the nature of their relationship to be “benign in the extreme”.[10]
[10] RD: 142 at [40].
Further, the Tribunal noted there was “no independent country information” before it to indicate that men were targeted in honour crimes.[11] The Tribunal also found the way in which the applicant’s relationship was discovered was implausible.[12]
[11] RD: 142 at [41].
[12] RD: 142 at [42].
The Tribunal did not accept the applicant was threatened with a pistol or attacked with a knife, the former claim only being raised at the hearing for the first time and the latter not mentioned at all at the hearing.[13]
[13] RD: 142 at [44].
The Tribunal did not accept evidence given at the hearing regarding an attempted reconciliation with the woman’s brother as this was inconsistent with his written statement.[14]
[14] RD: 142 at [44].
The Tribunal also found accounts given by the applicant relating to his movements following the claimed attack to be inconsistent and his delay in leaving Jordan was not indicative of someone at risk of serious harm.[15]
[15] RD: 143: at [45]-[46].
Finally, the Tribunal noted the applicant’s father had returned to Jordan voluntarily the day before the hearing despite him also fearing harm from those who threatened the applicant.[16]
[16] RD: 143 at [47].
Having considered the applicant’s evidence both individually and cumulatively, the Tribunal found the applicant’s fear of persecution was not well-founded and that he did not meet the refugee criterion set out in s.36(2)(a) of the Migration Act 1958 (Migration Act). For similar reasons, the Tribunal was not satisfied the applicant met the complementary protection criterion under s.36(2)(aa) of the Migration Act.[17]
[17] RD: 143 at [48]-[53].
The current proceedings
These proceedings began with a show cause application filed on 22 September 2017. There are three particularised grounds in that application:
1.The Tribunal committed jurisdiction error by failing to lawfully consider evidence essential to the resolution of the review and not giving merits to the facts presented prima facia.
Particulars
(a)Evidence that the applicant has a real chance of a well-founded fear of being harmed if returned to country of former habitual residence.
2.The Tribunal committed jurisdiction error by failing to consider the subjective and objective elements of well-founded fear of being harmed under the Refugees Convention
Particulars
(a)The claim that the applicant has a legitimate fear particularly to the threats made by the girls family to kill him
(b)The claim that the applicant will face "honour killing" or "Shame killing" to the belief that he has brought shame or dishonour to the girls family. In this case, the applicants relationship with the girl is considered, among other things, as dishonourable although with no sexual relations, the victim is to be punished for this, potentially giving rise to a 'real chance' of having a well founded fear of being harmed
(c)The applicants claim of fear of own safety, being attacked and potentially killed
(d)The subjective element of 'well-founded fear' concerns the state of mind of the applicant, therefore the applicant has a present fear of risk of harm in the reasonably foreseeable future.
(e)The objective element that is that the applicant in fact holds a well-founded fear- a reasonable degree of likelihood, a real and substantial risk, a reasonable possibility and a real chance therefore not applying the correct language as one should under the Convention
3.The decision was affected by legal unreasonableness
Particulars
(a)Failure to consider the application of Wednesburys Unreasonableness in making the decision, the decision is so unreasonable that a reasonable person would not have made it
(b)Did not consider the object and purpose of the Refugees Convention or "true reason" for "well founded fear of harm", therefore not giving merits to the common sense of the facts of the case
(c)Unreasonableness to the risk indicator that the applicant is of a Islamic Jordanian background to which the said country is made of extremists and fundamentalists
(d)Section 5J(l) (b) 'Real chance' test not given proper consideration that there is a prospect of well-founded and realised fear of being harmed
(e)Unreasonableness due to implausible considerations being far-fetched and fanciful (not enough merits given)
(f)The claim that the applicant had previously relocated to parts of Jordan did not stop the 'group/brothers' from threatening to harm and potentially kill the applicant. Therefore the decision-maker improperly interpreted S5J which provides that a person should have safe and legal access to an area where they reside.
(g)The age of the applicant not considered properly therefore questioning credibility in the facts given. The applicant depended on his father to prepare during the application process.
(errors in original)
The application is supported by an affidavit in which the applicant makes submissions in support of his application. I received the affidavit as a submission.
I have before me as evidence the book of relevant documents filed on 20 November 2017.
At the outset of today’s hearing, the applicant told me that he had something to submit additional to what appears in the court book. He said that he had photographs of his girlfriend in Jordan. He explained that these were taken some time ago but were not disclosed to the Tribunal. I took the applicant to [19] of the Tribunal’s reasons.[18] He told me that the photographs he now has were different from the ones he referred to there as having been deleted.
[18] RD: 139.
It appears that on 1 June 2017, the applicant took a screenshot of images from an email account of another female friend. The applicant states that a number of the images on that screenshot are of his former girlfriend. Those images show a young female in Muslim attire. I expressed some mystification as to why the applicant did not show those photographs to the Tribunal. He certainly had no hesitation in showing them to me. Nevertheless, he said that his fear of the possible consequences prevented him from showing them to the Tribunal. I declined to accept the images on the applicant’s mobile phone as evidence, as the photographs were not given to the Tribunal.
I invited oral submissions from the applicant this afternoon. He addressed his concerns about the Tribunal’s decision, particularly its adverse credibility findings. It is apparent that the applicant disagrees with the assessment of his credibility. Both in his grounds in his affidavit and in his oral submissions, the applicant took issue with the merits of the Tribunal decision. As I explained to him, however, those merits are beyond the scope of this proceeding.
His assertion of unreasonableness is, in my view, no more than an expression of emphatic disagreement with the decision.
In my view, the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. In that regard, I agree with the Minister’s submissions.
Ground 1
From the reasons given by the Tribunal, it is clear that the applicant’s evidence was considered but was found not to be credible. Without further particulars, this ground does not raise an arguable case for the relief claimed.
To the extent that the applicant is asking this Court to review the merits of the evidence, this is a course of action, in this instance, not available to the Court.[19]
[19] Minister for Immigration v Wu Shan Liang [1996] HCA 6.
Ground 2
In the particulars which follow, the applicant claims he has a legitimate fear of being killed by the young woman’s family because he has brought shame or dishonour to that family. The applicant claims he meets both the “subjective” and “objective” elements of a well-founded fear.
For the reasons given by the Tribunal, it did not accept the applicant’s claims and for this reason did not accept that he had a well-founded fear of persecution. The applicant has not challenged those adverse findings except to re-assert his claims for protection. The Court is unable to engage in merits review of that evidence.
Ground 3
There are a number of particulars which follow and which are summarised and addressed below.
Claims (a), (c), and (e)
The applicant refers to “Wednesburys Unreasonableness” and claims the decision is so unreasonable that a reasonable person would not have made it. The applicant states that he is of “Islamic Jordanian background to which the said country is made of extremists and fundamentalists”. The applicant further contends that the Tribunal’s unreasonableness was due to “implausible considerations being far-fetched and fanciful (not enough merits given)”.
The principles informing judicial review for unreasonableness in the legal sense were summarised by the Full Federal Court in Minister for Immigration v SZVFW.[20] In Minister for Immigration v SZMDS[21] at [131], it was recognised that whether a different conclusion should be reached was insufficient for a finding of illogicality:
logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[20] [2017] FCAFC 33 at [37]-[39]. See also CHW16 v Minister for Immigration [2017] FCA 762 at [36]-[39].
[21] (2010) 240 CLR 611.
The applicant’s reference to “extremists and fundamentalists” may be alluding to the Tribunal’s findings relating to the “honour crime” which the applicant’s relationship was said to trigger. The Tribunal did not accept that the limited nature of that relationship would prompt such a response and that, in any event, there was no independent country information which would indicate that men are targeted in these types of crimes.
The Tribunal’s findings on this, and other issues, were open to it on the evidence. Without more, the applicant is merely making a global assertion and/or seeking impermissible merits review.
Claim (b) – The Tribunal did not consider the object and purpose of the Refugee Convention therefore not giving merits to the common sense facts of the case
The Tribunal’s reasons make clear that it understood the criteria for a protection visa and the claims made by the applicant. Those claims were not accepted for the reasons given and it is submitted that there is no legal error made by the Tribunal on the basis contended.
Claim (d) – the real chance test was not given proper consideration
This is again a global assertion without particularisation. Without more, this ground cannot succeed, but in any event, the Tribunal’s reasons speak to the contrary.
Claim (f) – relocation
The applicant refers to his “relocation” within Jordan which “did not stop the ‘group/brothers’ from threatening to harm and potentially kill” him. The applicant contends the Tribunal “improperly interpreted ‘S5J’ which provides that a person should have safe and legal access to an area where they reside”.
As the Tribunal did not accept that the applicant had a well-founded fear of persecution, it was not required to consider whether it would be reasonable for the applicant to relocate should he return. The Tribunal did not accept the applicant’s claims in relation to the harm alleged and noted that he gave inconsistent accounts of his movements subsequently, which also contributed to the adverse credibility findings. The Tribunal did not err as contended by the applicant.
Claim (g) – the age of the applicant
The applicant contends his age was not properly considered when the Tribunal considered the credibility of his account and that he depended on his father to prepare his application.
The Tribunal’s reasons disclose that the applicant was eighteen at the time of his departure for Australia. When asked why he did not leave immediately following the claimed threats, the applicant said he left the matter to his father. The Tribunal pointed out he was an adult but the applicant continued to assert that it was his father who arranged their departure and prepared the visa application.[22] At the time of the Tribunal hearing, the applicant was 21 years old.[23]
[22] RD: 140 at [23]-[24].
[23] RD: 140 at [37].
There is no legal error in the Tribunal’s reasoning on this point.
Conclusion
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 July 2018
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