EJD19 v Minister for Immigration and Anor

[2020] FCCA 1432

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJD19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1432

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal failed to consider aspects of the applicant’s psychological conditions and the assertion that he is unlikely to have access to psychological services in Turkey – whether the Tribunal failed to give adequate weight to the Turkish consulate in Sydney, refusing to grant the applicant a passport – whether the Tribunal had ample evidence of the applicant’s association with the movement, and the Tribunal acted selectively, with witnesses who came forward – whether the Tribunal failed to consider the applicant’s educational history which is relevant to his poor expression and inability to express events consistently – whether the Tribunal failed to consider that the applicant was, at the time of the hearings or had been, in correctional and detention centres – whether the Tribunal committed jurisdictional error, because it did not contact the witnesses that the applicant had consented to it contacting – whether the Tribunal failed to consider the applicant’s last travel to Turkey and his early return – whether the Tribunal failed to make a critical call to the applicant’s mother-in-law – legal unreasonableness – whether jurisdictional error is made out – jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1), 36, 426.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86

FCR 547

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Applicant: EJD19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2878 of 2019

Judgment of: Judge Humphreys

Hearing date: 31 January 2020

Date of Last Submission: 31 January 2020

Delivered at: Parramatta

Delivered on: 31 January 2020

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms Hooper

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The request by the applicant for an adjournment is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2878 of 2019

EJD19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a Turkish citizen. The applicant first arrived in Australia on 27 December 2008 as the holder of a Temporary Partner visa (subclass 309).

2. The applicant most recently returned to Australia on 19 January 2013, as the holder of a Permanent Partner visa (subclass 100). The applicant was granted a Resident Return visa on 29 June 2017, but this visa was cancelled on 23 March 2018.

3. On 7 May 2019, the applicant applied for a protection (class XA) visa. It is understood that the applicant made this application whilst in immigration detention, following being convicted and imprisoned in relation to breaches of Apprehended Domestic Violence Orders.

4. On 4 June 2019, a delegate of the Minister for Home Affairs (“the delegate”), refused the application for a protection (class XA) visa.

5. The applicant then sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). On 9 October 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

The Administrative Appeals Tribunal’s Decision

1. At paragraph 5 and 6 of its decision, the Tribunal notes:

   5. He claims to fear persecution or significant harm at the hands of Turkish authorities, due to his membership of the Gulen movement (actual and perceived)… The applicant claims his former de fact partner informed the Turkish authorities about his involvement during a visit to Turkey in 2017.

   6. He also claims to fear from his own family, in part they are angered by his conversion to Sunni Islam, and also because they will want to ‘clear their names’ (that is distance themselves from any association with a known or suspected Gulenist).

2. At paragraph 9 of its decision, the Tribunal notes that the applicant married an Australian citizen when she was in Turkey. After the applicant’s arrival in Australia, the couple experienced problems and they separated, however remained legally married. The applicant met his most recent partner in 2014. They lived in a de facto relationship. The applicant’s most recent partner, also issued Apprehended Domestic Violence Orders against him. Breaches resulted in the applicant’s conviction and imprisonment. The applicant alleges that his former de facto partner, has informed Turkish authorities about his religious and political activities in Australia.

3. At paragraph 18 of its decision, the Tribunal deals with the credibility of the applicant’s claims. Whilst noting the applicant’s unfamiliarity with the Tribunal setting and the fact that he did not have strong presentational skills, the Tribunal had significant concerns about the credibility of his claims and evidence. The Tribunal was concerned that the applicant had exaggerated and misconstrued past events, tailored his evidence and some of his claims were untruthful.

4. At paragraph 26 and onwards of its decision, the Tribunal noted relevant country information as to the Gulen Movement in Turkey. At paragraph 30 of its decision, the Tribunal notes that the first mention of the applicant having concerns with safety in Turkey, is found in a note from March 20 and it was only in May 2019, when he lodged his protection visa application, that he mentioned his conversion to Sunni Islam and his family’s disapproval of it. The Tribunal proceeded on the basis that the applicant’s conversion was plausible and not far from certain.

5. The Tribunal accepts that the applicant’s family might have disapproved of his stricter religious observance. The Tribunal does not accept that the applicant’s family assaulted him, put him under psychological pressure or tried to prevent his return to Australia. The Tribunal accepts that the applicant’s family were disappointed about his imprisonment in Australia, but there is nothing to suggest they rejected him for that reason.

6. Paragraphs 51 onwards of the Tribunals decision deal with the applicants association with the Gulen Movement. The Tribunal accepts that the applicant lived in a house, in a street in Auburn, for about a year and it is plausible that the house is linked to the Gulen Movement. The Tribunal had significant concerns about the claims of the applicant. The Tribunal noted firstly, that the applicant provided inconsistent evidence, as to when he began associating with the movement. Secondly, the Tribunal is of the view that the applicant tried to blur the distinction between his involvement with Sunni Muslims in Sydney and the Gulenist links. Finally, there was a lack of corroborative evidence from supporters of the Gulen Movement and the applicant’s claimed association with it.

7. At paragraph 73 of its decision, the Tribunal sets out reasons why it has concerns as to assertions that the applicant was linked with the Gulen Movement. The Tribunal determined to place minimal weight on these letters as evidence of the applicant’s association with the Gulen Movement.

8. The Tribunal next considered the applicant’s claim that his ex-de facto partner had informed the Turkish authorities of allegations in 2017. The Tribunal concluded that the applicant’s claims were unreliable and misconstrued, taking into account his failure to mention these fears prior to May 2019.

9. Paragraphs 79 to 87 of the Tribunals decision deal with the applicant’s claims that he has not been issued with a permanent replacement passport by Turkish authorities. The applicant attributes this to the Turkish authorities’ knowledge of his involvement with the Gulen movement.

10. The Tribunal accepted that the consulate has refused to issue him with a new passport, but would issue him with a travel certificate. The Tribunal found that given that the applicant had reported his Turkish passport as lost, had no valid Australian visa, had been convicted and imprisoned due to criminal offences, it was unremarkable that the Turkish authorities would decline to issue him with a replacement passport, but opt to supply a travel certificate.

11. Paragraph 87 of its decision deals with Turkish authorities’ awareness of the applicant’s protection visa application. The Tribunal found that it is possible that Turkish authorities suspect that the applicant has applied for protection.

12. The Tribunal found that the applicant’s primary concerns relate to his wish to remain in Australia. The Tribunal concluded that the applicant did not meet the requirements for protection under s 5J(1) of the Migration Act 1958 (Cth) (“the Act”), nor did he meet the complimentary protection requirements under s 36(2) of the Act.

Grounds of Appeal

1. Eight grounds of appeal are set out in the applicant’s application to the Court. Each alleges jurisdictional error by: failing to give adequate weight to evidence; failure to consider various aspects of the applicant’s evidence; being selective in relation to witness evidence; failing to consider the applicant’s history and poor language capacity; failing to consider that the applicant had been in custody and was restricted from gathering evidence; failing to contact witnesses when provided with an opportunity to do so; failure to consider the reasons for the applicant’s early return to Australia from Turkey on his last visit or failing to make a critical call to the applicant’s mother-in-law, upon being requested to do so.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented and was assisted by an interpreter. The applicant had previously been represented by lawyers but they withdrew from the matter on 12 January 2020.

2. The Court notes that whilst the applicant was previously in immigration detention, he is now in custody with New South Wales correctional services. The reason for this change, is an irrelevant consideration for the Court and it is simply noted that it has no bearing or impact, on this decision.

3. The applicant asked the Court if he could have the matter adjourned. The applicant indicated that he would like to have the opportunity to have legal representation. Previous lawyers withdrew because the applicant was unable to pay their fees. The applicant was unable to provide the Court with any explanation as to how this might change in the future, bearing in mind that he is now in custody. Ms Hooper, appearing for the first respondent, opposed any adjournment. There are many matters before this Court in the migration area and Court time is extremely limited.

4. In the absence of any plan or realistic probability that the applicant can obtain legal representation, the Court was not satisfied that it was appropriate to grant the adjournment sought and determined to hear the matter to conclusion.

5. In so doing, the Court was mindful that the most important part of any matter before it, being the grounds of appeal (bearing in mind that the Court had the grounds of appeal), it seemed appropriate that the Court could consider this matter, without unduly disadvantaging the applicant.

6. The Court determined it could hear the matter to conclusion without necessarily disadvantaging the applicant, or to an extent that he would be denied an opportunity of having a fair hearing.

7. The applicant made a number of submissions to the Court which included why his lawyers did not assist him, complaints about the cancellation of his Permanent Resident visa, as well as the fact that he was threatened by his ex-partner and says he was assaulted in prison.

8. Although invited to do so, the applicant did not make any written submissions, which could be regarded as jurisdictional error, on the part of the Tribunal.

9. Prior to the hearing commencing, the first respondent’s submissions were translated to the applicant. The Court was also provided with two affidavits of Xavier Roy Goffinet, solicitor, which attached various documentation from the Court book, some of which has been redacted, as well as an excerpt of the transcript of the hearing. Those affidavits were read.

The First Respondent’s Submissions

1. Ground one alleged that the Tribunal failed to consider aspects of the applicant’s psychological conditions and the assertion that he is unlikely to have access to psychological services in Turkey.

2. Counsel for the first respondent submits that the substance of this ground, is that the Tribunal failed to consider an integer or aspect of the applicant’s claims, that he satisfies the complimentary protection criteria. Where the Tribunal fails to make a finding upon a substantial, clearly articulated argument, such failure can amount to a constructive failure to exercise jurisdiction. But an unarticulated claim must emerge squarely from the materials before the decision maker.

3. Counsel for the first respondent submits that at no time did the applicant claim to fear harm in Turkey because of his psychological condition, rather, his psychological condition was said to explain deficiencies in his oral evidence at the protection interview.

4. Ground two alleges that the Tribunal failed to give adequate weight to the Turkish consulate in Sydney’s refusal to grant the applicant a passport. Counsel for the first respondent submits that this ground seeks impermissible merits review. The Tribunal considered this claim and made factual findings reasonably open to it.

5. Ground three alleges that the Tribunal had ample evidence of the applicant’s association with the movement and that the Tribunal acted selectively with witnesses who came forward. Counsel for the first respondent submits that this ground is difficult to understand and does not itself disclose any indication of jurisdictional error.

6. Ground four alleges that the Tribunal failed to consider the applicant’s educational history, which is relevant to his poor expression and inability to express events consistently. Counsel for the first respondent submits that this did not appear in any submission that was put to the Tribunal.

7. Ground five alleges that the Tribunal failed to consider that the applicant was, at the time of the hearings or had been, in correctional and detention centres. The Tribunal did refer to this information and considered the matter in its decision.

8. Ground six alleges that the Tribunal committed jurisdictional error because it did not contact the witnesses that the applicant had consented to contacting. Pursuant to s 426 of the Act, the Tribunal can be notified of a request to call a witness, but is not required to do so. All the Tribunal is required to do, is to apply its mind to the notice from the applicant and then decide whether or not it should take evidence from the nominated witnesses. In the current case, no request in accordance with

   
    

   s 426(2) of the Act was made.

9. While the Tribunal retained a discretionary power to take such evidence, it is submitted by Counsel for the first respondent that no jurisdictional error is demonstrated. First, the applicant never directly requested that the Tribunal take evidence, his representative merely stated that the applicant consented to the Tribunal contacting the persons. No evidence has been adduced to show that the failure to contact these persons, amounted to an obvious enquiry about a critical fact, such to constitute a failure to conduct a proper review.

10. Ground seven alleges that the Tribunal failed to consider the applicant’s last travel to Turkey and his early return. Counsel for the first respondent submits that this ground effectively seeks merits review. In any event, the Tribunal did consider it, but was not prepared to accept that he the applicant returned early because of fears of assault or otherwise.

11. Ground eight alleges that the Tribunal failed to make a critical call to the applicant’s mother-in-law. Counsel for the first respondent submitted that there was no evidence the applicant specifically requested the Tribunal to consider exercising its discretion to contact his former mother-in-law. In any event, at paragraph 78 of the Tribunals decision, the request was considered and declined by the Tribunal and the reasons it gave does not reveal jurisdictional error.

Consideration

1. It is well established that the Tribunal is not required to accept uncritically, any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437) at [451]).

2. It is for the applicant to satisfy the Tribunal that they meet the criteria for being a refugee (see Abebe v Commonwealth of Australia (1999) 197 CLR 150). An adverse credit finding was found, which was open to the Tribunal. On the material, it was based on rational grounds and was arrived at, on consideration of the matters logically probative of the issue of credibility (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

3. There is no general obligation on the Tribunal to investigate the applicant’s claims. The duty imposed on the Tribunal by the Act, is a duty to review, not a duty to enquire.

4. Jurisdictional error will only arise where there is an obvious failure by the Tribunal in the case before it, to make an obvious enquiry about a critical fact and the existence of which, is easily ascertained. As to ground one, the Court is satisfied that the applicant did not, at any point of time, make a substantial or clearly articulated argument that he feared harm in Turkey because of his psychological condition.

5. The Tribunal specifically took into account at paragraph 20 of its decision, the applicant’s psychological state and at paragraph 21 of its decision, took into account that the applicant appeared unfamiliar with the Tribunal setting and was somewhat nervous.

6. At paragraph 24 of its decision, the Tribunal stated that “even making allowances for the factors mentioned above, the Tribunal has significant concerns about the credibility of the applicant’s claims in evidence”. Ground one fails to show any jurisdictional error.

7. As to ground two, at paragraphs 79 to 86 of its decision, the Tribunal set out the background and evidence as to the refusal of Turkish officials to grant the applicant a new passport. In the applicant’s circumstances, the Tribunal considered it unexceptional that Turkish authorities would have offered to supply a travel certificate, rather than a full passport. The Court is satisfied that the Tribunal considered the matter in detail and came to a conclusion supported by the evidence available to it. The Court agrees with the first respondent in that this ground seeks impermissible merits review.

8. Ground three alleges that the Tribunal was selective in its consideration of the evidence of the applicant’s association with the Gulen Movement. It is clear however, that the Tribunal considered post-hearing statutory declarations and at paragraph 73 of its decision, set out four clear reasons as to why it placed minimal weight on these letters, as independent corroboration of the applicant’s claims. No jurisdictional error is made out.

9. Ground four alleges that the Tribunal failed to consider the applicant’s educational history, which is relevant to his poor expression and inability to express events consistently. Counsel for the first respondent submits that such a submission was never made. In any event, the Tribunal took into account, at paragraph 21 of its decision, that the applicant did not have strong presentational skills, was unfamiliar with the Tribunal setting and somewhat nervous. At paragraph 24 of its decision, the Tribunal specifically made allowances for these factors. This ground merely seeks for the Court to engage in impermissible merits review and the ground must fail.

1. Ground five alleges that the Tribunal failed to consider that the applicant was, at the time of the hearing and had been previously, in either correctional or detention centres and was restricted from gathering evidence. This ground fails at a factual level. At paragraph 12 of its decision, the Tribunal specifically noted that the applicant was currently in immigration detention and had previously been in custodial detention. This ground fails at a factual level and no jurisdictional error is established.

2. Ground six alleges that the Tribunal committed jurisdictional error as it did not contact the witnesses that the applicant consented to it contacting. No proper application was made in accordance with s 426(2) of the Act to enliven such a request.

3. No information was provided by the applicant’s legal representative as to what information or evidence the witnesses would provide a clear answer to a critical fact. At the resumed hearing, there was no evidence that the applicant or his legal representative asked the Tribunal to telephone any of the named persons. Nor is there any evidence that the Tribunal did not consider taking oral evidence from any of the witnesses, on the basis that it was material to its consideration.

4. The Tribunal considered the evidence given in the statutory declarations and made references to it in its reasons. The Court is not satisfied that there is any jurisdictional error from the failure to contact these witnesses.

5. Ground seven alleges that the Tribunal failed to adequately consider the applicant’s last travel to Turkey and return to Australia, at an earlier date. It is clear the Tribunal did consider this evidence, but rejected the conclusion that the applicant returned as a result of threats of violence from his family. Again, this ground simply seeks impermissible merits review.

6. Ground eight alleges that the Tribunal failed to call the applicant’s former de facto mother-in-law which, it is said, would have revealed critical evidence. There is no evidence that the applicant or his legal representative, expressly requested the Tribunal to contact the former de facto mother-in-law. There is no evidence before the Court that the evidence that the ex de facto mother-in-law would have provided, was material to the Tribunal’s consideration and no jurisdictional error is apparent. No jurisdictional error arises.

7. As the applicant is unrepresented, the Court has perused the decision of the Tribunal. The Court is satisfied that there is no jurisdictional error apparent on the face of the record, which has not been articulated by the applicant.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 23 June 2020