EQU19 v Minister for Immigration and Anor (No.2)
[2020] FCCA 991
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQU19 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 991 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal did not take into account relevant considerations – whether the Tribunal did not apply the relevant law – whether the Tribunal did not afford the applicant procedural fairness – whether the Tribunal’s decision was legally unreasonable – no jurisdictional error made out – further amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 425, 427, 476 |
| Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Muin v Refugee Review Tribunal (2002) 190 ALR 601 NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927 |
| Applicant: | EQU19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3055 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 16 March 2020 |
| Date of Last Submission: | 21 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2020 |
REPRESENTATION
The Applicant appeared in person at the hearing. Ms M Yu of counsel subsequently was instructed and advanced written submissions.
| Counsel for the Applicant: | Ms M Yu |
| Solicitors for the Applicant: | Human Rights for All Pty Ltd |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The further amended application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3055 of 2019
| EQU19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 8 November 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.
The applicant was found to be a citizen of Jordan and his claims were assessed against that country.
The applicant claimed to fear harm, in summary, because of a blood feud and because of his religion. The applicant also claimed that he had enemies who were in possession of an audio recording in which he swore at Muslims and that they threatened to hand this over to the authorities. The applicant also claimed that he had been unable to access healthcare or employment or reintegrate.
On 18 July 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.
On 19 July 2019, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 30 September 2019, the Tribunal invited the applicant to attend a hearing on 17 October 2019. The applicant appeared on that date to give evidence and present arguments.
The Tribunal in its reasons identified the background to the review application. The Tribunal identified the relevant law, including as an incorporated attachment the relevant statutory provisions. The Tribunal summarised the applicant’s claims.
The Tribunal referred to the enormous amount of documents that the applicant provided prior to the hearing and that some additional documents were handed to the Tribunal member as he was entering the hearing room.
The Tribunal identified that the applicant wanted brought to the Tribunal member’s attention that there was a new court case in Jordan brought against him by his former fiancée’s family. The Tribunal identified raising with the applicant what the court case was about and that the applicant was vague in response.
The Tribunal raised with the applicant that there was no translation in relation to the claimed court documents and there was nothing to identify or certify that the document was a true copy of a court document. The applicant claimed that he had provided a copy of a case number and that he had translated some of the document himself using Google translate. The Tribunal raised its concern that the document did not identify what the case was about. The Tribunal identified that the applicant was asked repeatedly whether and what he had been charged with and that he was informed that, for the documents to be taken into account, they had to be properly translated.
The Tribunal identified that the applicant claimed that if he returned to Jordan he would be crucified and killed by most Jordanian Muslims because he was a Christian and could not practise his faith. The applicant also claimed that there was a blood feud between his family and another family and that he would be killed.
The applicant also claimed that there was a dispute between him and his ex-fiancée and her family because he had sworn at Islam and Muhammad and they had recorded his voice and would give it to the authorities.
The applicant also claimed that he was of poor health and would be homeless and unable to access medication or a pension and that it was a long period of time since he had been in Jordan.
The applicant also claimed that he had been pressured to convert to Islam many times in Jordan and that his hometown was only two per cent Christian.
The Tribunal member identified that, in response to the applicant’s concerns, the Tribunal member had been to Jordan during Ramadan and lived in Middle Eastern countries and that people, both westerners and locals, were still able to eat there during the day. The applicant said that the shops were closed and when it was put to him that the shops did not close, particularly given tourism was a major part of the economy, the applicant accepted that people could eat.
The Tribunal identified that the applicant referred to it being illegal to preach Christianity in Jordan. The applicant referred to having been studying the Bible to become a priest. The applicant did not know what a seminary was but when it was explained to him he said that he had been studying the bible in class with a priest every day.
The Tribunal raised with the applicant that he had not before mentioned that he had preaching and the applicant asserted that he had and the applicant then said he had not done any formal priestly study.
The Tribunal identified that the applicant asserted that there had been churches in his home village burnt down and was asked for evidence of this. The Tribunal raised with the applicant that Christian hospitals would have been expected to suffer if there had been an anti-Christian culture and referred to country information that there were two Christian hospitals in his home region and that there was no country evidence of them having been targeted and that the applicant claimed that there had been incidents in the past.
The Tribunal also raised with the applicant country information in relation to the inter-faith relations in Jordan which is counter to what he had claimed in relation to Christians in Jordan.
The Tribunal identified that, regarding the blood feud, the applicant claimed his father and grandfather got into an argument with a member of a particular family and shot and killed him about twenty-eight or twenty-nine years ago and alleged that the problem had festered and could go on forever.
The Tribunal referred to the applicant identifying that he had a sister and two brothers. The applicant said that he had not spoken to his brothers for more than fifteen years.
The Tribunal referred to the applicant’s evidence that his father went to the US and comes and goes from Jordan but has not been targeted. The Tribunal referred to the applicant going to Jordan in 2001 to see his sick father but nothing happened to him. The Tribunal raised with the applicant that the blood feud had been going on for thirty years and no one had been hurt.
The Tribunal referred to the applicant’s claim that he had a letter from the authorities that there was a blood feud. The Tribunal raised with the applicant the concern as to the veracity of the letter.
The Tribunal explored with the applicant his health. The applicant claimed that he was bipolar and on medication and that it was expensive in Jordan and he was not sure if it was even available. The Tribunal raised with the applicant the absence of any factual basis for his alleged fear in relation to access to the healthcare in Jordan.
The Tribunal raised with the applicant country information that the government paid eighty per cent for people in the applicant’s situation and that individuals could petition the royal court to waive the twenty per cent contribution and that this did not support the applicant’s healthcare claims.
The Tribunal referred to the applicant’s mental health and identified that there were mental health services in Jordan.
The Tribunal referred to the applicant identifying that he had extended family but no first or second cousins in Jordan and that he had a brother and sister in Jordan.
The Tribunal identified that the applicant had worked as a welder in Jordan and has done this in Australia. The applicant also worked as a shoe repairer in Jordan.
The Tribunal put country information to the applicant in relation to his ability to access mental health support and that the applicant did not appear to have done much research in relation to the Jordanian medical system. The Tribunal referred to country information in relation to Jordanian Government steps to improve the healthcare system and that it appeared the applicant would be able to access appropriate health care in Jordan.
The Tribunal, in relation to the blood feud, identified that the applicant referred to a person who he alleged was cheating on him whilst he was in jail and that he told her family. The applicant also claimed that he reported her for not studying. When the applicant was released, he spoke to the family and he was told to bring her back but he could not so he dobbed her in to the police, after which she was detained and the family fell out with him. The applicant alleged that he began the swearing at Muslims because she was sleeping with some of them and they recorded him.
The Tribunal referred to asking the applicant if the court case was about money and that he said it was. The Tribunal put to the applicant that it was therefore a civil case. The applicant said it was also criminal because of the blaspheming component. The applicant identified that he had only one case and that the second case had not been started because he could not be charged until he arrived in Jordan.
The Tribunal referred to the applicant’s claim that the document he produced was a letter and a warrant and that the applicant was invited to provide a translation.
The Tribunal explored with the applicant why his ex-fiancée would call him and whether the authorities could put an alert for when he arrived back.
The Tribunal referred to the applicant’s claim that there was a recording of him swearing at Muslims as his ex-fiancée was going out with Muslims and he disliked Muslims. The applicant claimed that his ex-fiancée had been cheating on him since 2016 and that she had told her family she was not a virgin and that had soured relations which is why they had recorded him after April 2018.
The Tribunal referred to the applicant arriving on a temporary partner’s visa on 17 July 1997 and that his application for citizenship was refused in 2008 due to ongoing proceedings for criminal matters.
The Tribunal referred to the applicant’s resident return visa being cancelled in December 2014 due to new criminal convictions, which was later revoked and then cancelled again in January 2017 due to new criminal convictions.
The Tribunal referred to the applicant lodging his Protection visa application in June 2019.
The Tribunal took into account the medical reports the applicant had provided from his psychiatrist and IHMS and accepted that he had a history of depression and drug-induced psychosis. The Tribunal found that there was no reference in the doctor’s letters to the applicant having a bipolar disorder but had taken the same into account in relation to access to mental health support in Jordan.
The Tribunal did not accept that any mental health condition the applicant suffers from accounts for any of the credibility issues that may have arisen during the hearing.
The Tribunal found the applicant’s evidence regarding his claims to lack credibility. The Tribunal found the applicant not to be a reliable or credible witness and found that he had fabricated his claim in order to be granted a Protection visa.
The Tribunal accepted that the applicant is Christian but did not accept that he had studied to be a priest in Jordan or that he would be likely to proselytise if he were to return there. The Tribunal referred to the inconsistency in the applicant’s claims in relation to having to do an introductory bible course as well as being unaware of what a seminary was and asserting that he studied the bible every day. The Tribunal also took into account that the applicant was unaware of the two Christian hospitals that operated in his home village. The Tribunal did not accept that the applicant has or would seek to proselytise in Jordan or that he has been preaching in Australia. The Tribunal did not accept that the applicant would be killed or crucified by Muslims for being a Christian in Jordan and that he would not be able to practice his faith.
The Tribunal found that the applicant was prone to making unsubstantiated claims in relation to the influence of Islam in Jordan as to not allowing people to eat during Ramadan and having shops closed. The Tribunal identified that when it was put to the applicant that the Tribunal member had been to Jordan many times and that this was not the case, the applicant then asserted that people were not allowed to eat on the street.
The Tribunal also took into account a raft of country information provided by the applicant regarding the treatment of Christians in Jordan. The Tribunal identified placing greater weight on country information available to the Tribunal member and referred to the Tribunal member’s own experience of the country.
The Tribunal referred to a report dated January 2014 in relation to Jordanian Government’s commitment to religious diversity and that there is a positive atmosphere of tolerance. The Tribunal member noted that his last visit to Jordan was in September 2019 and that the churches he drove past were open and had no security around them.
The Tribunal referred to the blood feud. The Tribunal found that the applicant’s evidence lacked credibility. The Tribunal referred to the period of time over which the alleged blood feud related and that nobody appeared to have been approached, let alone attacked or killed. The Tribunal referred to the applicant living in Jordan for seven years after the start of the alleged blood feud and returning to see his ill father in 2001 without incident. The Tribunal found that no such blood feud exists.
The Tribunal accepted that there may be some disagreement between the applicant and the family of his ex-fiancée but did not accept that there is a court case involved and that her family are seeking to harm him or that he has been recorded insulting Muslims and the Prophet Muhammad and that this would be used against him.
The Tribunal referred to the vague nature of the alleged court case and that the applicant later said it was a civil matter where he was trying to recoup money spent on his ex-fiancée. The Tribunal referred to the applicant providing further material post the hearing and it was willing to accept the same as being genuine but found that it did not support the applicant’s claim regarding the enmity with the family over the failed engagement to their daughter.
The Tribunal noted the post hearing evidence appears to be based on s 422 of the Jordanian Penal Code (Breach of Trust) and that the defendant claims that it relates to money sent by the applicant to invest in a water station that suffered a loss. The Tribunal noted that there had been no mention of the basis of this case by the applicant. The Tribunal found that the case had been brought by the applicant against the family to recoup money and found that he would suffer no legal consequences regardless of the result.
The Tribunal referred to the applicant’s representation by a particular lawyer and found that it lacks credibility that the applicant would then conduct one on one telephone conversations with those he is taking to court rather than speaking through his lawyers. The Tribunal did not accept that lawyers are used differently in Jordan. The Tribunal found that the applicant’s ability to sort things out through discussion had long since failed so it makes no sense that he would still be attempting to do so.
The Tribunal did not accept that the applicant was regularly talking to his ex-fiancée’s family and, accordingly, did not accept that the applicant swore at Muslims and the Prophet Muhammad and that this had been recorded by the family. The Tribunal did not accept that the applicant was threatened by his ex-fiancée and that he would be targeted by her family on return.
The Tribunal gave little weight to the applicant’s claims that he had received threats over the phone. The Tribunal identified, in that regard, that it lacked credibility that, if the applicant’s ex-fiancée had a high-ranking uncle in the police, the ex-fiancée would call the applicant’s private number to inquire when he was returning.
The Tribunal referred to the applicant’s health concerns. The Tribunal was not satisfied that the applicant’s health issues are sufficiently serious that he would be unable to be treated for them in Jordan. The Tribunal did not accept that the applicant would face a real chance of serious harm on return to Jordan because of his health issues. The Tribunal did not accept that the applicant would be unable to access health care in Jordan because he did not have a job. The Tribunal referred to country information in that regard and found that the applicant would be able to receive health care.
The Tribunal accepted that the applicant had been in Australia for half his life but, as a result of credibility findings, did not accept that his relations in Jordan are as parlous as the applicant claimed.
Having considered the applicant’s claims both singularly and cumulatively, the Tribunal found that the applicant does not have a well-founded fear of persecution for any s 5J of the Act reason now or in the reasonably foreseeable future.
The Tribunal found that there were not substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.
Before the Court
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
The Court then identified that it would deal with the applicant’s application in a case for recusal, during which the applicant also made an application for an adjournment.
For the reasons separately given, the Court dismissed the application for recusal and also dismissed the application for an adjournment. The Court was not satisfied, in the circumstances of the present case, that an adjournment was warranted in the interests of the administration of justice.
The case commenced on 22 November 2019. The applicant had filed a number of affidavits, all of which were read.
From the bar table, the applicant referred to the applicant’s criminal history referred to by the Tribunal. It was the applicant that provided an email, attaching the Australian Federal Police incident report in relation the applicant’s alleged evidence of an injury and the applicant’s case review. The applicant also included incident reports in the material that he provided to the Tribunal, as attached to his affidavit of 8 January 2020. The applicant included in that regard information relating to his visa cancellation.
In these circumstances, there was no reason why the Tribunal should not identify the applicant’s history in respect of migration visas and cancellations and the identified cause in respect of that migration history. There is nothing to suggest that the Tribunal took into account those criminal matters as being relevant or material to the Tribunal’s reasoning in respect of the applicant’s claims or the rejection of the applicant’s claims.
Further, on the face of the Tribunal’s reasons and the transcript of the hearing, which has now been tendered into evidence, the Court finds that the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. There is nothing in the transcript, manner of questioning or the reasons of the Tribunal by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of the matter on its merits. No jurisdictional error arises by reason of the reference to the cancellation of the applicant’s visas due to criminal offences.
The Tribunal did not use the applicant’s criminal record in the reasoning process in respect of the applicant’s claims. No jurisdictional error arises by reason of the reference to the applicant’s criminal convictions.
The applicant submitted that, despite a request in the hearing the Tribunal member in substance refused to let the applicant present his using an interpreter. There is nothing in the transcript to support that assertion. That assertion is inconsistent with the Tribunal’s reasons and inconsistent with the transcript that has been tendered. There is nothing before the Court to support the applicant’s assertions that the Tribunal member had already made up the Tribunal member’s mind. The transcript is inconsistent with that assertion, as are the reasons of the Tribunal. The transcript and the reasons of the Tribunal support the Court finding that the Tribunal conducted the review with an open mind reasonably capable as to persuasion on the merits. No jurisdictional error arises by reason of the applicant’s complaint in relation to the conduct of the hearing by the Tribunal.
The applicant also referred to the material that he belatedly handed up to the Tribunal. The Tribunal identified the same in its reasons. The applicant asserted that the Tribunal had not accepted the applicant’s claims and had not had regard to the applicant’s material.
It is apparent that the Tribunal had a genuine intellectual engagement with the applicant’s submissions and evidence. The Tribunal made dispositive findings in respect of the whole of the applicant’s claims. It was open for the Tribunal to reject the applicant’s claims for the reasons given by the Tribunal, as summarised above.
The applicant referred to the Tribunal member raising with the applicant the Tribunal member’s personal experience. The applicant confirmed that this experience was raised by the Tribunal member in the course of the hearing. There was no suggestion by the applicant that that had not occurred. The transcript, on a fair reading, supports the applicant’s concession in that regard and that the Tribunal member as a matter of substance identified he had been in Jordan and raised personal experience as to the applicant’s contention as to the inability to eat as a Christian during Ramadan because the shops were shut.
The Court notes that there is reference in the reasons to the Tribunal member driving past churches in Jordan and their being no security and which is not expressly raised in the transcript, however, the Court does not accept that this was material to the reasoning of the Tribunal or that the reference to the same gives rise to any jurisdictional error as the applicant was clearly on notice as to and engaged with the issue as to the applicant’s claims to fear harm by reason of his Christianity.
In these circumstances, there was no denial of procedural fairness by the Tribunal member taking into account his own personal experience that in substance had been raised with the applicant. The applicant had a reasonable opportunity to respond to the Tribunal’s concern as to the claim to fear harm by reason of his Christianity. It is apparent that the applicant did respond and suggested that it was simply the case that one could not eat on the streets during the relevant religious ceremony, recanting from his earlier assertion in relation to the shops being shut. On a fair reading of the whole of transcript the applicant had a real and meaningful hearing. No jurisdictional error arises in the conduct of the review by reason of the reference in the hearing and in the reasons to the Tribunal member’s personal experience.
The applicant also raised the issue in relation to his mental health. It is apparent that the Tribunal considered that in detail and gave logical and cogent reasons supported by country information as to why the applicant would be able to access adequate health services in Jordan. It is also apparent that the Tribunal raised these issues with the applicant in the course of the hearing. No jurisdictional error arises by reason of the applicant’s disagreement with the adverse findings by the Tribunal in relation to the applicant’s mental health.
The applicant referred to the period of time during which he had been in Australia and there being nothing for him back in Jordan. This, in substance, was an invitation to the Court to engage in merits review. This Court has no power to review the merits or to determine the matter on compassionate or discretionary grounds.
In relation to the alleged recovery of money spent by the applicant on his ex-fiancée, the Tribunal found that the court case was a civil matter which did not expose the applicant to any real chance of serious harm or significant harm. The Tribunal rejected the applicant’s claims in relation to facing a criminal case.
The Tribunal made adverse findings which were open in relation to the applicant’s claims concerning the threat of releasing a recording made by his ex-fiancée because the Tribunal found that no such recording had been made and that there was no such threat.
It is apparent that the Tribunal addressed the applicant’s claims concerning the court case that had been brought by the applicant in relation to the alleged recovery of money spent on his ex-fiancée as a civil matter which did not expose the applicant to any real chance of serious harm or significant harm.
For the above reasons, nothing said by the applicant from the bar table identified any jurisdictional error.
At the end of the hearing on 16 March 2020, the Court identified that it was concerned in relation to the issue raised as to the use of personal knowledge by the Tribunal member and the applicant’s assertion in relation to asking for an interpreter given that the invitation to hearing form as completed did ask for an interpreter.
Accordingly, the Court made orders at the end of the hearing on 16 March 2020 requiring the first respondent to file an affidavit annexing the transcript and providing leave to file further submissions by the applicant, then the respondent and then the applicant in reply.
On 14 March 2020 the Court extended the time for the filing of the affidavit and submissions.
The applicant then obtained legal representation and advanced written submissions.
On 7 May 2020, in response to the applicant’s submissions seeking leave to raise two new grounds (ground 7 and ground 8), leave was granted for the filing of a further amended application and, by consent, the Court ordered that the matter would be decided without a further oral hearing.
The Court has taken into account the transcript annexed to the affidavit filed on 20 April 2020 and the further submissions filed on 4 May 2020, 18 May 2020 and 21 May 2020 which focused on ground 7 and ground 8 of the further amended application.
Grounds in the further amended application
The grounds in the further amended application filed on 8 May 2020 are as follows:
1. The Tribunal erred by failing to accept the numbered substantive bundle of relevant documents before the hearing denying the Applicant both procedural fairness and natural justice.
2. The Tribunal erred by failing to apply the statutory test for refugee protection, namely by taking into account irrational behaviour about the blood feud in its assessment of the future risk of harm to the Applicant.
3. The Tribunal erred by failing to take into account the Applicant’s pending Court case in Jordan whether criminal or civil matter would impact him by reasons of s36 (2A).
4. The Tribunal erred by failing to take into account evidence of significance, namely that Jordan is an Islamic State.
5. The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm by threat to punish the Applicant by law could amount to significant harm for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth).
6. The Tribunal erred by failing to take into account the impediments of removal.
7. The Second Respondent (the Tribunal) failed to comply with s.425(1) of the Migration Act 1958 (Cth) by failing to provide the Applicant with an interpreter in the Arabic language.
Particulars
a. On his Response to Hearing Invitation Form (CB 241) the Applicant requested that an interpreter in the Arabic language be provided at the hearing before the Tribunal.
b. The Hearing Record Form records that no interpreter was provided at the Tribunal hearing (CB 255).
c. The Applicant’s basic level of spoken English, coupled with his existing mental health conditions were such that he did not have had a meaningful opportunity to present arguments and evidence at the Tribunal hearing without the assistance of an interpreter. This was material to the outcome of the Tribunal’s decision as the Tribunal’s core reasons for rejecting the Applicant’s claims and evidence were due to a perceived lack of credibility and accuracy in his evidence. Consequently the Tribunal’s decision was affected by jurisdictional error.
8. The Tribunal failed to comply with s.425(1) of the Act by failing to give the Applicant a meaningful opportunity to address matters that were the subject of the Tribunal’s personal knowledge, which were dispositive to the outcome of the review.
Particulars
a. The Applicant had claimed to fear harm for reasons including his Christian religion, because he could not practise his faith and would be crucified and killed by most Jordanian Muslims: see [13] of the Tribunal decision record.
b. At the Tribunal hearing, the Tribunal (as constituted by Member Rodger Shanahan) mentioned to the Applicant that he had lived in the Middle East, been to Jordan in as recently as September 2019 and that:
i. it is possible to eat during Ramadan; and
ii. Christians are not routinely killed or crucified in Jordan.
c. At [53] of its decision, the Tribunal rejected the claim referred to above at (a) and found that among other things, the Applicant made unsubstantiated claims regarding the influence of Islam within Jordan.
d. At [55] of its decision, the Tribunal considered that it preferred the information contained within country information as well as the Tribunal’s personal knowledge of the circumstances in Jordan over that of the country information provided by the Applicant, which indicated that there had been, among other things, attacks on churches in Jordan. In doing so, the Tribunal referred to his last visit to Jordan in September 2019 and stated that the Member had driven past churches and observed there being no security around them.
e. At no point during the hearing did the Tribunal Member mention that he had driven past churches and observed there being no security around them, on his visit to Jordan in September 2019. As a result, the Applicant was not given any meaningful opportunity to present arguments and evidence on this issue.
f. The Tribunal’s reliance on its personal knowledge in making the findings at [53] of its decision and its manner of questioning the Applicant at the hearing about the matters referred to above at (b) were not sufficient to discharge its obligation to put the Applicant on notice of the issues arising in relation to the review for the purposes of complying with s.425(1) of the Act.
g. The Tribunal was required to clearly articulate, in terms that could be understood by the Applicant, the aspects of his evidence which were contrary to the Member’s personal knowledge and to clearly invite the Applicant to present arguments or give evidence in relation to those apparent contradictions, in accordance with its statutory obligation in s.425(1) of the Act.
Ground 1
In relation to ground 1, contrary to the applicant’s assertion, it is apparent from the Tribunal’s reasons that the Tribunal accepted the material provided by the applicant at the hearing and subsequent to the hearing. There was no information that has been identified that the Tribunal failed to take into account. The Tribunal’s reasons reflect a real and meaningful engagement with the applicant’s claims and evidence.
It was open to the Tribunal to make adverse findings in relation to the applicant’s claims for the reasons given by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.
No jurisdictional error arises by reason of ground 1 of the application.
Ground 2
In relation to ground 2, the Tribunal correctly identified the relevant law in relation to the 1951 Refugee Convention and in relation to complementary protection. It was open to the Tribunal to take into account the period of time that had passed in respect to the alleged blood feud and the absence of harm to anyone in that regard. The adverse finding by the Tribunal in respect to the applicant’s claims concerning the blood feud were open for the reasons given by the Tribunal as summarised above.
No jurisdictional error arises by reason of ground 2.
Ground 3
In relation to ground 3, it is apparent that the Tribunal sought to explore with the applicant the alleged pending case in Jordan and whether it was criminal or civil and made findings that were open to it in respect of the applicant having brought a civil claim in relation to seeking to recover money spent in relation to his ex-fiancée. The Tribunal sought to address whether or not the nature of the proceedings were of a criminal nature and did not accept the applicant’s claim that there were criminal proceedings on foot against the applicant.
There was no jurisdictional error in these circumstances as alleged in ground 3.
Ground 4
In relation to ground 4, the Tribunal clearly took into account the applicant’s claims in respect of his Christian faith and Jordan being in an Islamic State and took into account country information in relation to the treatment of Christians in that State. The adverse findings by the Tribunal were open for the reasons given by the Tribunal. There was no failure to take into account the applicant’s claim to fear harm in relation to Christianity or in respect of Jordan being in an Islamic State. The adverse findings in relation to the applicant’s claim were open for the reasons given by the Tribunal.
No jurisdictional error is made out by ground 4.
Ground 5
In relation to ground 5, it is apparent that the Tribunal took into account the applicant’s claims of mental health problems and made adverse findings in relation to complementary protection that took into account the adverse findings dispositive of the applicant’s claims under the 1951 Refugee Convention. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal. There is no failure to take into account a relevant consideration. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law in relation to complementary protection and made adverse findings that were open for the reasons given by the Tribunal. This ground invites impermissible merits review.
No jurisdictional error is made out in relation to ground 5.
Ground 6
This appears to be nothing more than a claim that the Tribunal should have accepted the applicant’s claims and a request for merits review. It is apparent that the Tribunal had regard to the applicant’s mental health but found that he could access sufficient mental health assistance in Jordan.
No jurisdictional error is made out by ground 6.
Ground 7
The applicant’s application for review form, on 19 July 2019, stated that he did not require an interpreter, although the response to hearing invitation form included a request for an Arabic interpreter. Contrary to what the applicant informed the Court in the course of his submissions, on 16 March 2020, the transcript does not support the applicant requesting an interpreter in the hearing before the Tribunal. Indeed, there is no exchange in which the applicant asks for an interpreter.
On the face of the transcript, it is apparent that the applicant had a real and meaningful hearing and that the applicant was able to communicate effectively without an interpreter. There is only one reference in the transcript in response to concerns raised by the Tribunal where the applicant suggested as an explanation for the credit concern that his English may not have reflected his intention. That response on a fair reading did not suggest any issue that the applicant needed an interpreter or any issue of a material misinterpretation in the conduct of the review. It was on its face an endeavour to explain away the shift in the applicant’s evidence after the Tribunal raised with the applicant the Tribunal’s concerns with the applicant’s evidence. The reference did not give rise to circumstances in which the Tribunal was required as a matter of legal reasonableness to expressly consider the powers under s 427(7) of the Act.
Having carefully considered the transcript and the submissions, there was no breach of s 425 of the Act in the circumstances of the present case or any denial of procedural fairness arising from the want of an interpreter at the hearing. The applicant, on the face of the transcript, was clearly able to understand and communicate with the Tribunal. The Court does not accept that the applicant’s mental history gives rise to any basis upon which there was any apparent exchange between the applicant and the Tribunal that reasonably could be regarded as giving rise to a need for an interpreter or that the Tribunal should have further considered independently whether there was a need for the same. It is apparent that the applicant was able to meaningfully engage with the Tribunal.
The submissions concerning the religious studies and the determination of the applicant’s core claims on credibility grounds do not give rise to any basis by reason of which there is any jurisdictional error as raised in ground 7.
The Court accepts the first respondent’s submissions that a fair reading of the transcript indicates the applicant communicated without difficulty in English and at no point in the hearing requested an interpreter or indicated that he could not understand the Tribunal’s questions.
None of the passages quoted from the transcript in the applicant’s submissions indicate that the applicant needed or wanted an interpreter.
The Court finds based on the transcript that the applicant was proficient in English and that there was no proficiency issue that arose in the hearing whereby the Tribunal should have considered, as a matter of legal reasonableness, directing that the communication proceed through an interpreter under s 427(7) of the Act. The Court finds that the absence of an interpreter did not give rise to any denial of procedural fairness in the conduct of the review and as found above that the applicant had a real and meaningful hearing.
The Court further accepts the submission that, even if there was an error in not providing an interpreter, which the Court does not accept, the applicant has not discharged his onus of showing a realistic possibility that the Tribunal’s decision could have been different if one had been provided: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [46].
Accordingly, no jurisdictional error is made out by ground 7.
Ground 8
In relation to ground 8, the first respondent refers to the personal knowledge referred to in paragraphs 53, 54 and 55 and the absence in the transcript of the Tribunal mentioning that the Tribunal member had driven past churches and observed there had been no security around them. It was submitted that this meant that the applicant did not have a meaningful opportunity to present arguments in response and, accordingly it is submitted that there was a breach of s 425(1) of the Act. The Court finds that there was no such breach.
The applicant at paragraph 4 of the applicant’s submissions dated 21 May 2020 relied upon what was said by the learned Branson J in NAEH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927 at [13] which is as follows:
13 An administrative decision-maker is under no obligation to disregard his or her relevant personal experiences. Indeed, relevant personal experience or expertise may explain an individual's appointment to an administrative body such as the Tribunal. However, the Tribunal is under a duty to conduct a fair hearing. Where the Tribunal contemplates calling in aid the presiding member's own observations in a way which could be prejudicial to the interests of an applicant, the applicant is entitled to be given an opportunity of commenting on those observations in the context of the applicant's claims (Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123).
The applicant submitted that the Tribunal had accordingly failed to observe the requirements of procedural fairness and that the applicant had failed to comply with the requirement of a fair hearing under s 425 of the Act.
The Court accepts the first respondent’s submissions that the issue raised by the applicant’s claim to fear harm was whether the applicant could go back to Jordan because of his religion being Christian. It is apparent from the Transcript that that issue was fairly raised by the Tribunal and addressed by the applicant in the course of the hearing before the Tribunal.
That issue was identified fairly for the applicant by the Tribunal in the transcript at page 9.10-.36 and on page 11.20, as well as at page 11.33 to page 13.31 which is as follows:
TRIBUNAL MEMBER: Okay, okay. So let’s deal with each one of these one by one. First of all, tell me about your claim about Christian – being killed because you’re Christian?
THE APPLICANT: Okay. In the past, I have been too many time revert to become Muslim, where I refused, and has been hassled too many time to be become a Muslim and I still refused. And in Jordan - - -
TRIBUNAL MEMBER: When was this?
THE APPLICANT: Before I came here, to Australia, 23 years ago, and even I went back in 2001 it’s the same story happen to me.
TRIBUNAL MEMBER: Okay. And how is – how did they try and revert you?
THE APPLICANT: Because I live in the town where all Muslim. Only two per cent of Christianity where we’re living and most of the people Muslim on that site, so if you are a Christian and you go in there, you have to do like the Muslim way they doing: you have to do Ramadan; you can’t eat; you have to expect Muslim religion as - - -
TRIBUNAL MEMBER: What do you mean you can’t eat during Ramadan?
THE APPLICANT: When they have the holy month of Ramadan.
TRIBUNAL MEMBER: No, I understand. I have lived in countries in the Middle East - - -
THE APPLICANT: Yeah.
TRIBUNAL MEMBER: - - - but, I mean, you can eat during Ramadan. I mean - - -
THE APPLICANT: No, like in Jordan, no, if they fasting on that month, holy month.
TRIBUNAL MEMBER: Yes. I have been in Jordan during Ramadan and you can eat?
THE APPLICANT: Eat after when they’re eating.
TRIBUNAL MEMBER: No, during the day they don’t close - - -
THE APPLICANT: No - - -
TRIBUNAL MEMBER: - - - they don’t close every shop.
THE APPLICANT: Some of them that do. But like it’s like disrespecting when you’re gonna eat when they fasting, so they take advantage out of that.
TRIBUNAL MEMBER: I don’t understand. So you can – yeah, you’re not a Muslim?
THE APPLICANT: No, Christian.
TRIBUNAL MEMBER: Yes.
THE APPLICANT: That’s what I’m saying.
TRIBUNAL MEMBER: So, I mean, you can eat during Ramadan. You don’t observe Ramadan. The whole of Jordan doesn’t close down during Ramadan. You know, tourism is a significant part of the Jordanian economy. They - - -
THE APPLICANT: Yeah.
TRIBUNAL MEMBER: - - - they can’t close down during Ramadan, so I don’t understand what you’re saying you can’t – you have to follow - - -
THE APPLICANT: You have to follow the custom, the way they believe. Like on holy month they fasting, you cannot eat on the street because you make them like they wanna eat and they suspect them.
TRIBUNAL MEMBER: I mean, that’s just courtesy. But you can – people sell food during that?
THE APPLICANT: You still you can, but - - -
TRIBUNAL MEMBER: People sell food during Ramadan, don’t they?
THE APPLICANT: They, do yes.
TRIBUNAL MEMBER: Okay. They don’t close.
THE APPLICANT: No, no, they don’t close. But you can eat indoor, not outdoor.
TRIBUNAL MEMBER: So why is – why is that a problem?
THE APPLICANT: Like one of that you have to follow them traditional. Then you have to believe in Islam as a religion, where I don’t believe in Islam as a religion.
TRIBUNAL MEMBER: Yes. So why do you have to believe in Islam as a religion?
THE APPLICANT: Because the law in Jordan, you – I have got a document I submitted to the court as well for you and where they say you have to believe in Muslim. And I’m, as a Christian, I’m not allowed to preach any Christianity to anyone in Jordan other than Islam. This is illegal to do that.
The Tribunal explored with the applicant his religious activities, and the applicant’s alleged desire to study Christianity. The Tribunal touched again upon the ability to eat during Ramadan and that the applicant could do so, and the applicant confirmed that was so at page 16.45 of the transcript.
The Tribunal identified the concern relation to the applicant’s earlier inconsistent evidence in respect of the applicant’s credibility. The Tribunal member raised with the applicant his concern in relation to the accuracy of the applicant’s evidence. The Tribunal again addressed the applicant’s credit relation to the evidence of there being no food sold during Ramadan in Jordan and the applicant contended that he did not say they did not sell food and that the issue was eating it in front of Muslims when they are fasting in their holy month.
The applicant confirmed that that was a courtesy, in response to the question from the Tribunal, and added that it may be because of his English that the Tribunal took it in a different way from his intention. There was no suggestion, at this point, that there had been any misunderstanding by the applicant in relation to the questions put by the Tribunal or in relation to the applicant’s ability to answer, nor was this exchange, on a fair reading, an exchange that gave rise to any obligation upon the Tribunal to give rise to consideration of whether an interpreter was required.
That is because it is apparent that the applicant was meaningfully engaging and responding to the Tribunal’s questions, and what was being advanced was an explanation in relation to the apparent inconsistency and the concerns as to the applicant’s credibility raised by the Tribunal with the applicant in the course of the hearing.
The Tribunal further explored the applicant’s claims of harm in respect of being Christian at pages 17 to 18 of the transcript. In response to the applicant’s claims as to the limited percentage of Christianity in Jordan, the Tribunal member said, “I have been to Jordan quite a few times. I was there in September was the last time” and identified that Christians are not routinely killed or crucified in Jordan. The applicant maintained his claim to fear harm, because he personally liked Christianity.
The applicant alleged that churches have been burnt down in a particular area. The Tribunal member also raised with the applicant whether there were Christian hospitals and raised with the applicant the existence of two hospitals identified in country information and the absence of targeting of the same, as well as raising country information in relation to Jordan being a tolerant society. The Tribunal raised further country information from the UN Human Rights Council in relation to the atmosphere of tolerance between Muslims and Christians.
These exchanges reflect a real and meaningful opportunity for the applicant to address the Tribunal’s concerns in respect of the applicant’s claim to fear haram being a Christian. The observations in paragraph 55 of the Tribunal’s reasons as to the Tribunal member’s last visit and the churches that he drove past being open and having no security around them were not an issue in the review and where not of a kind prejudicial to the applicant’s claim to fear harm as a Christian that separately required an opportunity for the applicant to comment on those observations. It is apparent, in the context of the applicant’s claims, that the Tribunal raised with the applicant, in respect of his claimed fear of harm given his Christianity, the credibility concerns of the Tribunal in respect of the same, including relevant country information.
The Tribunal was not required to give the applicant its thought process and ultimate reason for not accepting his claim, see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48]. It is apparent that the Tribunal was further addressing the applicant’s credibility involving his Christian claims at pages 65 to 66, as well as at page 68 of the transcript and that the applicant was given the opportunity to put on further submissions. This is not a case where there has been a failure to comply with s 425 of the Act and the Court does not accept that the Tribunal’s reasoning, in the last sentence of paragraph 55 of the Tribunal’s reasons, was material to the Tribunal’s determination of the applicant’s credit or the outcome of the review.
Further, the Court does not accept that the last sentence of paragraph 55 of the Tribunal’s reasons, and taking the same into account or not taking the same into account could possibly have given rise to a favourable outcome for the applicant in the disposition of the review of the application for a Protection visa.
The Court accepts the first respondent’s submission that the Tribunal is entitled to rely on its own knowledge: Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [7], [116], [263-264] and SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 at [148]-[153].
The Court finds that the reference to personal knowledge by the Tribunal during the hearing and in its reasons does not give rise to any denial of procedural fairness in the conduct of the review or any breach of s 425 of the Act.
No jurisdictional error as alleged in ground 8 is made out.
Applicant’s affidavit dated 22 November 2019
In relation to the applicant’s affidavit dated 22 November 2019, it advances alleged errors in paragraphs 4 to 9 as follows:
4. The Second Respondent’s decision was unreasonable.
5. The Second Respondent did not properly apply s36 of the Migration Act 1958.
6. The Second Respondent failed to take relevant considerations into account.
7. There was insufficient evidence or no evidence to support various findings made by the Second Respondent.
8. The Second Respondent’s decision involved an error of law.
9. The Second Respondent’s in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.
Paragraph 4
In relation to paragraph 4, it is apparent that the Tribunal identified logical and cogent reasons, as summarised above, for the adverse findings. There is no identified finding or outcome that can be said to lack an evident and intelligible justification. There is no basis to find that the second respondent’s decision was legally unreasonable.
No jurisdictional error is made out by paragraph 4.
Paragraph 5
In relation to paragraph 5, the Tribunal correctly identified the relevant law and there is no basis to find that the Tribunal misapplied the relevant law under the 1951 Refugee Convention or in relation to complementary protection.
No jurisdictional error is made out by paragraph 5.
Paragraph 6
In relation to paragraph 6, there is no relevant consideration identified that the Tribunal failed to take into account.
No jurisdictional error is made out by paragraph 6.
Paragraph 7
In relation to paragraph 7, there is no particular finding that has been identified in respect of which there was no evidence or insufficient evidence. To the extent that the Tribunal made adverse credibility findings, those adverse findings were open for the reasons given by the Tribunal and summarised above.
No jurisdictional error is made out by paragraph 7.
Paragraph 8
In relation to paragraph 8, the bare assertion of an error of law does not identify any jurisdictional error. The Tribunal, on the face of its reasons, correctly identified the relevant law and made findings consistent with correctly applying the relevant law.
No jurisdictional error is made out by paragraph 8.
Paragraph 9
In relation to paragraph 9, on the face of the Tribunal’s reasons, the Tribunal complied with its statutory obligations in inviting the applicant to attend a hearing. On the face of the transcript before the Court and the Tribunal’s reasons, it is apparent that the applicant had a real and meaningful hearing before the Tribunal. Further, it is apparent that the Tribunal raised with the applicant the issues of concern in the course of the hearing and made findings dispositive of the applicant’s claims that were open to the Tribunal. There is no basis to find that the Tribunal failed to comply with the requirements of procedural fairness in the conduct of the review.
No jurisdictional error is made out by paragraph 9.
As no jurisdictional error is made out by the further amended application or by reason of the applicant’s submissions or matters raised in the applicant’s affidavit, the further amended application is dismissed.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 5 June 2020
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