ERU19 v Minister for Immigration

[2020] FCCA 1863

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERU19 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1863

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for protection visas – whether the Tribunal failed to consider relevant material – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.13, 36, 476

First Applicant: ERU19

Second Applicant: ERV19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3094 of 2019

Judgment of: Judge Street

Determined on the papers

Date of Last Submission: 23 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

Solicitors for the Applicant: Alan Rigas Solicitors

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3094 of 2019

ERU19

First Applicant

ERV19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) with respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 October 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants protection visas. 

2. The applicants were found to be citizens of Fiji and their claims were assessed against that country.  

3. The first and second applicant are husband and wife and arrived in Australia in August 2014 as visitors. It was not until 14 March 2016 that the applicants lodged an application for protection, and the core claim was that the first applicant had been forcefully arrested and falsely charged over a robbery, as well the general situation in Fiji. The second applicant also advanced the claim that she is afraid of harm and cannot return to Fiji because of her political involvement with the Social Democratic Liberal Party (“SODELPA”) against the government. 

4. These are proceedings in which the parties consented to orders on 24 April 2020 that the Court would hear and determine the matter on the papers by consent, consistent with s 13(4)(b) of the Federal Circuit Court of Australia Act 1999 (Cth).

5. The Court has treated the court book as having been marked as exhibit A. The court has treated the two affidavits on the Court file as having been read and admitted into evidence, and the Court has had the benefit of the written submissions filed by the applicant and the first respondent, which the Court has taken into account. 

6. On 28 June 2016, the Delegate found that the applicants failed to meet the criteria for the grant of protection visas. The applicants applied for a review and appeared before the Tribunal on 25 October 2018, as well as 23 November 2018, to give evidence and present arguments, and were represented by a migration representative. 

7. The Tribunal in its reasons identified the background to the visa application and set out the relevant law, including in an attachment incorporated by pagination into the Tribunal’s reasons. 

8. The Tribunal summarised the applicants’ claims and what occurred before the Delegate, as well as what took place at the hearing. 

9. It is apparent that the Tribunal raised with the applicant their migration history and returns to Fiji, and their unsuccessful claims for a carer’s visa, as well as their activities with SODELPA in Australia, including the documents from SODELPA. 

10. The Tribunal also referred to and engaged with the post-hearing submissions. 

11. The Tribunal referred to both applicants claiming to be both members and supporters of the opposition political party SODELPA in Australia, and that they will be targeted on return to Fiji because of their activities with SODELPA, and that the second applicant alleged that she would be targeted for harm by police in Fiji because of her activities in support of SODELPA while she has been in Australia, including comments that she has put on a SODELPA Facebook page. 

12. The Tribunal identified the first applicants’ travel history in relation to arriving in Australia on 28 August 2014, returning to Fiji on 24 November 2014, and returning to Australia on 14 December 2014, departing Australia again for Fiji on 16 January 2015, and last arriving in Australia on 2 February 2015. 

13. The Tribunal found that the second applicant left Fiji and arrived in Australia on 20 August 2010, returned to Fiji on 30 August 2010, returned to Australia on 28 August 2014, returned to Fiji on 1 September 2014, and left Fiji and arrived back in Australia on 14 December 2014, but again returned to Fiji on 16 January 2015, and last arrived in Australia on 2 February 2015. The Tribunal also referred to travel by the second applicant, in her prior married name, in and out of Australia in 2002, 2003, 2004, 2005 and 2006. 

14. The Tribunal found that that migration history is not consistent with the applicants’ claims. The Tribunal did not accept the first applicant’s claim about his fear of return to Fiji. 

15. The Tribunal referred to the delay in the application for the protection visas. The Tribunal identified that if the applicants had serious claims about why they could not return to their country and they were true, both applicants would have made their application for protection sooner, at the earliest opportunity. The Tribunal found that neither applicant provided a reasonable explanation for why they did not apply earlier for protection. 

16. The Tribunal accepted that the first applicant was suspected of burglary in late April 2014. The Tribunal found that the first applicant’s arrest and one day in detention was part of an investigation. The Tribunal found that, after the first applicant was released from detention in April 2014, he was not contacted again about the matter by police or authorities. 

17. The Tribunal did not accept the first applicant’s claim that he would be suspected again and be of interest to the police and could suffer harm if returned to Fiji. 

18. The Tribunal did not accept that police were asking about the first applicant in Fiji in 2017, because if this were true, the applicant would have included it in his statutory declaration in July 2018, which he did not. The Tribunal found that this was an embellishment by the first applicant to assist him in obtaining a protection visa. 

19. The Tribunal accepted that the applicants had advanced a claim before they left Fiji for compensation in relation to the first applicant’s arrest and found that those proceedings were discontinued. The Tribunal did not accept that the case was discontinued because the police were trying to hide evidence. 

20. The Tribunal found that there was no real chance or real risk that the applicants, or either one of them, would suffer serious harm or significant harm from police, the military, or authorities or anyone else in Fiji because of the legal proceedings that the applicants commenced against the police before they left Fiji in 2014, including because the lawyer engaged is acting in a case involving a chief and a sedition issue, to the extent that such a claim is advanced. The Tribunal also found that the applicants travelled to Fiji from Australia and stayed at their usual place of residence without difficulties since the time those proceedings were commenced. 

21. The second applicant claimed that she had had no difficulties with the authorities in Fiji while she was there. 

22. The Tribunal found that if the applicants, or either one of them, return to Fiji, they will not be of interest to the police, the military or authorities, including because of the first applicant’s detention and arrest in April 2014 and/or because of the legal proceedings that were commenced and/or because of their lawyer and/or because of an incident in 2009. 

23. The Tribunal found that there is no real risk of significant harm or real chance of serious harm to the applicants, or either one of them, from police, military or authorities in Fiji for the reasons claimed by the applicants. 

24. The Tribunal referred to the second applicant’s claim that she had been a ‘whistleblower’ about corruption and was outspoken against corruption. 

25. The Tribunal found that there was no real chance or real risk that the second applicant would suffer significant harm or serious harm because she was and will be an outspoken woman in Fiji. 

26. The Tribunal did not accept that the second applicant fears harm in Fiji for this reason, given that she has returned there from Australia on two occasions and that she has lived in Fiji for many years and has had no difficulties from police and authorities in Fiji. The Tribunal referred to the second applicant’s claims that in 2008, her home loan agreement with the Fiji Development Bank changed so that she had to pay more. 

27. The Tribunal found that there is no real chance or real risk that the second applicant will suffer serious harm or significant harm because of certain transactions on the part of a bank in relation to the second applicant’s housing loan and its repayments. 

28. The Tribunal referred to the applicants’ claims in relation to land rights.  The Tribunal found that there is no real chance or real risk that the applicants, or either one of them, will suffer significant harm or serious harm in Fiji because of the changes in their or their family’s land tenure in Fiji. 

29. The Tribunal found that there is no real chance of serious harm or real risk of significant harm for the second applicant because of her association with an opposition SODELPA leader. 

30. The Tribunal referred to the applicants being registered members of SODELPA, being an opposition party, and that they had supported and engaged in activities of SODELPA in Australia and produced letters from SODELPA in support of their claims. The Tribunal accepted that the applicants were registered members of SODELPA in Australia and have been since about March 2016. The Tribunal accepted that the applicants have been involved in a limited number of meetings and fundraising activities of SODELPA on occasions. 

31. The Tribunal accepted that the applicants will support SODELPA on their return to the country and will do so, as they have done in Australia, as ordinary members. The Tribunal, however, taking into account the relatively low level of the applicants’ levels in SODELPA in Australia and having regard to the country information, found that there is no real chance of serious harm or real risk of significant harm for the applicants, or either one of them, because of their membership and activities with SODELPA in either Australia or Fiji.

32. The Tribunal considered the applicants’ claims individually and cumulatively   and found that the applicants do not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of his or her race, religion, nationality, membership of a particular social group or political group, either now or in the reasonably foreseeable future, if returned to Fiji. 

33. The Tribunal found that the applicants are not persons in respect of whom Australia has protection obligations, and that the applicants fail to meet the criteria under ss 36(2)(a) or 36(2)(aa) of the Act, and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 25 November 2019. 

2. The ground in the amended application is as follows:

   1. The Second Respondent (the Tribunal) failed to consider relevant evidence that was before it.

   Particulars

   a. The Tribunal stated at [45] of its decision that in addition to the country information provided by the Applicants, it had specifically consulted paragraphs [3.42]-[3.46], [2.45][2.49] and [5.8]-[5.11] of the "DFAT Country Information Report, Fiji, 27 September 2017” (the 2017 DFAT Country Report).

   b. The Tribunal accepted, at [82] of its decision, that the Second Applicant had been involved in community radio and had engaged in social media activity on Facebook about issues relating to the opposition party Sodelpa. However the Tribunal found that neither the First or Second Applicant faced a real chance of serious harm or a real risk of significant harm on return to Fiji for reasons relating to their membership of and activities with Sodelpa. The Tribunal stated at [80] and [82] that it had formed this view based on the country information consulted by it and the fact that the Tribunal was of the view that the applicants were only of a low level or profile.

   c. In making the findings referred to above at (b), the Tribunal did not demonstrate any consideration of [3.62]-[3.68] of the 2017 DFAT Country Report which was before it at the time it made its decision. This part of the 2017 DFAT Country Report specifically dealt with the censorship and use of media as well as persons involved in the media in Fiji.

   d. The matters referred to in [3.62]-[3.68] of the 2017DFAT Country Report as outlined in (c) above were matters that were directly relevant to an integer of the claims made by the Second Applicant (namely, that she had been involved in community radio and social media activity as part of, and in support of Sodelpa). As such, this part of the 2017 DFAT Country Report was relevant the assessment of whether the Second Applicant met the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. As that part of the 2017 DFAT Country Report was not considered by the Tribunal in making its decision, the Tribunal's decision was affected by jurisdictional error.

3. The applicants submit that there was a failure by the tribunal to consider a claim arising on the material under s 36(2)(aa) of the Act. 

4. In that regard, the applicants relied upon paras [3.62] to [3.68] in the Department of Foreign Affairs and Trade Country Information Report on Fiji dated 27 September 2017 (“the DFAT report”). 

5. Those paragraphs of the DFAT report, in summary, refer to credible sources reporting limits to the media’s freedom to report on issues critical of the government, and that there are ‘red lines’ that are unclear, and that a certain publisher, editor and author were charged with ‘inciting communal antagonism’ on 17 August 2016, as well as referring to social media and its use for political discussion and Facebook users, and the prime minister’s comments about misuse of social media and a reference to the freedom of expression not being an absolute right and one that comes with responsibility. 

6. The applicants’ submissions refer to the second applicant’s alleged political activities in support of the opposition party SODELPA, and referred to the Tribunal’s finding that the second applicant’s activity was only low-level or a profile which did not accord with the profile of the persons who were said in the country information to have been targeted in Fiji. 

7. The submissions advanced that the DFAT report paragraphs referred to were relevant and corroborative to the second applicant’s claims to fear harm relating to her actual or imputed political opinion, and invited the inference to be drawn that the absence of reference to those paragraphs in the DFAT report indicated that the Tribunal had either failed to consider the relevant country information or had based its decision on a selective reading of the contents of the DFAT report.   

8. The Court accepts the first respondent’s submission that simply because the paragraphs have not been expressly mentioned does not support a basis to find that the Tribunal did not consider the whole of the DFAT report. 

9. Further, it is apparent from the Tribunal’s reasons, and in particular at the top of page 10 of the reasons, that the Tribunal did have regard to and identified particular paragraphs of the DFAT report. 

10. The Tribunal does not have to identify the whole of the information before it. The mention of particular paragraphs does not support a conclusion that the Tribunal did not take into account the whole of the DFAT report, nor on a fair reading are the paragraphs of the DFAT report of such materiality or corroborative support in respect of the second applicant’s claims that there is any reason why they should have been referred to in the context of the determination of the second applicant’s claims concerning her involvement with SODELPA. 

11. The proposition that the Tribunal focused on peripheral or irrelevant country information is, in substance, an invitation to engage in merits review. 

12. It is a matter for the Tribunal to determine what country information it accepts. The Tribunal’s reasons reflect an active intellectual engagement with the applicants’ claims and evidence and the making of dispositive findings that were open for the reasons given by the Tribunal. Those adverse findings, including that the second applicant was a low-level SODELPA supporter who would not be at risk, were open to the Tribunal. 

13. The Court finds that the proper inference to be drawn is that the Tribunal did consider the whole of the DFAT report and made findings that were open in relation to the applicants’ claims. The absence of express reference to particular paragraphs does not establish any jurisdictional error as alleged in ground 1. There is no substance in the assertion of a selective reading of the country information and no case of bias is alleged. In any event the Tribunal’s adverse findings are not conduct by reason of which a fair minded lay-observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits. Further, on the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits.

14. No jurisdictional error is made out by the application. 

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

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 15 July 2020