Ewh20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 618
•29 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 618
File number: SYG 2649 of 2020 Judgment of: JUDGE STREET Date of judgment: 29 March 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to have a genuine and intellectual engagement with the applicant’s evidence – whether the Tribunal made findings that lacked an evident and intelligent justification – no jurisdictional error made out – amended application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AAA, 476 Number of paragraphs: 27 Date of hearing: 29 March 2021 Place: Sydney Counsel for the Applicant: Mr T Baw Solicitor for the Applicant: Path Migration Counsel for the Respondents: Ms A Poukchanski Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2649 of 2020 BETWEEN: EWH20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
29 MARCH 2021
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely upon the amended application filed on 22 February 2021.
2.The amended application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.
REASONS FOR JUDGMENT
JUDGE STREET:
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 23 October 2020 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant to the applicant a Protection visa.
The applicant is a citizen of Liberia. The applicant arrived in Australia in January 2012. The applicant was granted a permanent Partner visa as a dependent on 23 March 2012. The applicant was the subject of a conviction on 27 June 2017. The applicant was the subject of another conviction on 7 June 2018. On 20 June 2018, the Partner visa was cancelled under s 501 of the Act.
The applicant lodged an application for a Protection visa on 12 August 2018. In summary, the applicant claimed to fear harm by reason of his family’s conversion from vodoo religion to Christianity. The applicant claimed that certain relatives were killed by ritualistic process. The applicant claimed that his family relocated to a remote location on Bushrod Island to avoid harm from family members practicing voodoo. The applicant feared that his extended family would seek revenge on him, and also feared harm because of his surname, and by reason of language issues and mental health, including a speech impediment.
On 29 June 2020, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. The applicant applied for review on 2 July 2020. The applicant appeared before the Tribunal to give evidence and present arguments on 9 October 2020. A transcript of the hearing was also tendered.
THE GROUNDS
The grounds in the amended application are as follows:
(1)The Second Respondent (the Tribunal) constructively failed in its duty to review the corroborating evidence of the applicant.
Particulars
(a)The applicant provided two newspaper articles which corroborated his claims that his grand-uncles were killed by way of Liberian ritualistic killings on Bushrod Island in 2012 because they would not participate in the traditional Voodoo practices of their family, and that his grandmother feared that she and her children would be targeted next.
(b)The Tribunal unreasonably and/or irrationally rejected the aforementioned corroborating evidence on the basis that it could not find these articles on the internet, which recorded killings that occurred 8 years ago.
(c)The applicant provided corroborating evidence from witnesses that the applicant's grandmother and her family (including the applicant) were advised to relocate to Bushrod island, a hard to get to location, in order to hide from her family that threatened them with Voodoo ritualistic practices.
(d)The Tribunal unreasonably and/or irrationally rejected the aforementioned corroborating evidence on the basis that it did its own internet search on google maps and found that Bushrod Island was not a remote location.
(e)The Tribunal found that if converting to Christianity meant people were being prosecuted that this would be reported in country information, but it was not. However the Tribunal failed to provide active intellectual engagement with, and make findings in respect to, the following corroborating evidence:
(i)the statutory declaration of Robert Lee Talbert, the son of a former president of Liberia, who attested that revenge killings for converting from Voodoo to Christianity or Islam occurred in Liberia but were not well publicised; and
(ii)a report of Amnesty International stating that traditional ritualistic practices in Liberia were regularly forced on others without their consent, and that the police could not adequately investigate the crimes, including murder.
(2)The Tribunal erred by finding that the associates of the applicant's father could assist the applicant to settle, if he returned to Liberia, as this was an unwarranted assumption which lacked any evidentiary foundation.
Grounds 1(a) and (b)
Ms Baw of counsel, on behalf of the applicant, addressed grounds 1(a) and 1(b) both orally and in her written submissions, contending that the Tribunal in paragraph 35 and 36 of its reasons had failed to have a genuine and intellectual engagement with the applicant’s claims and evidence in respect of two newspaper articles, and had acted on an unsupported or speculative assumption in relation to the reporting of ritualistic killings.
The applicant relied upon what he had alleged were two newspaper articles. In fact, as the Tribunal correctly identified, what was provided were two news articles purportedly downloaded from the web, one undated, and one with a purported date. The Tribunal, in its reasons, identified that it was unable to find those articles anywhere on the internet, and the Tribunal identified that it was unable to find any news articles on the two deaths, the subject of the alleged two articles.
The Tribunal identified clearly from country information that it was able to access new articles on ritualistic killings, and made a finding that such ritualistic killings are widely reported when it happens. In those circumstances, it is apparent that the Tribunal gave the two articles that purported to refer to the applicant’s relatives, little weight. It was open to the Tribunal to do so.
There was no failure to have a genuine intellectual engagement with the claims and evidence in respect of the two articles, nor was the finding by the Tribunal in relation to the wide reporting of ritualistic killings speculative or a finding not open to the Tribunal from the country information that was before the Tribunal. It was a matter for the Tribunal what country information it accepted. This is not a case where the Tribunal found the articles were fraudulent. It is apparent on a fair reading of the Tribunal’s reasons as a whole that it gave that material little weight.
There was no failure to have a real and meaningful intellectual engagement with the applicant’s claims and evidence as alleged in ground 1(a), nor was the finding by the Tribunal in respect of the wide reporting of ritualistic killings unreasonable or irrational or one that could be said to lack an evident and intelligible justification. It was for the applicant, under s 5AAA of the Act, to provide sufficient evidence to establish the applicant’s claims. The Tribunal’s adverse findings in paragraph 35 and 36 of its reasons are not findings to which no reasonable decision maker could come. No failure to take into account corroborating material is made out.
No jurisdictional error, as alleged in grounds 1(a) and 1(b), is made out.
Grounds 1(c) and (d)
In relation to grounds 1(c) and (d), the applicant takes issue with the Tribunal’s finding that the fleeing of the family to Bushrod Island was not to an area that was remote or difficult to access. The Tribunal identified country information in support of that finding. The applicant submitted that there are four witnesses who contend that the location was difficult to access. This, in substance, is an invitation to engage in merits review. It is clear that the Tribunal had a real and meaningful engagement with the evidence that was adduced as to Bushrod Island being remote and an isolated area and difficult to access.
The Tribunal identified that Bushrod Island is part of the capital and is not remote. The Tribunal identified that Bushrod Island contains the national port of Liberia, government buildings and residential areas. The Tribunal identified that it is connected by road and a bridge. The adverse finding by the Tribunal was logical, rational and open on the material before the Tribunal. It is not the case that the Tribunal must refer to every piece of evidence before it. This is not a case where the alleged corroborating evidence was of a kind that required express findings by the Tribunal. No failure to take into account the alleged corroborating material is made out.
No jurisdictional error arises by reason of grounds 1(c) and (d).
Ground 1(e)
In relation to ground 1(e), the applicant submitted that the Tribunal had failed to take into account the evidence of a particular person, who provided a statutory declaration in relation to revenge killings for converting from voodoo to Christianity as not being well publicised, and a contention from a letter from Amnesty International concerning the applicant’s claims that ritualistic crimes are not ones that are adequately investigated.
The Tribunal in its reasons expressly identified that some Liberians practice witchcraft and voodoo, and that there is a mix of religions which includes Christianity and voodoo. The Tribunal referred to the claims that the applicant’s granduncles were killed by the extended family due to their conversion to Christianity, and found that that was not supported through the evidence. The Tribunal did not accept that the applicant’s extended family attacked and killed the relevant relatives. The Tribunal referred to the information in the death certificates that they died from bullet wounds. The Tribunal expressly referred to the submission advanced that body parts were missing and that the police did not report that on the death certificates. The Tribunal, in that context, identified the ability to access articles on ritualistic killings and found that they were widely reported. The Tribunal also took into account that the deaths occurred at the end of the civil war which ended in August 2003. The Tribunal noted that violence was rampant during that war.
The Tribunal did expressly refer to the evidence of a particular witness, who had provided a statutory declaration, and had a real and meaningful engagement with the applicant’s claims concerning both the publication of ritualistic killings, and also the explanation for the bullet wounds identification on the death certificates.
The applicant submits that the Tribunal should have expressly referred in detail to the evidence of the particular witness who provided the statutory declaration, and referred to evidence that appears on page 459 of the court book. The Tribunal was not required to refer to every piece of evidence before it. It is apparent that the Tribunal had a real and meaningful engagement with the applicant’s claims concerning how his relatives died and made adverse findings that were open to the Tribunal for the reasons given. Those reasons cannot be said to lack an evident and intelligible justification.
The submission was advanced that the Tribunal had erred because it had not expressly referred to the letter from the Amnesty International in relation to ritualistic practices. This again is, in substance, an invitation to engage in merits review. The Tribunal did not have to refer to every piece of evidence before it, nor is this a case in respect of which there was a need for the Tribunal to make express findings referrable to the statutory declaration or the letter from Amnesty International. The Tribunal’s adverse findings as identified above were open for the reasons given by the Tribunal in relation to converting to Christianity.
The Tribunal relevantly found that the applicant did not meet the criteria for the grant of a Protection visa, and the Tribunal’s reasons reflect a thorough and genuine intellectual engagement with the whole of the applicant’s claims and evidence, and the making of adverse findings were open for the reasons given by the Tribunal. No failure to take into account corroborating material is made out.
No jurisdictional error arises by reason of ground 1(e) in the applicant’s amended application.
GROUND 2
In relation to ground 2, Ms Baw took the Court to the transcript in relation to the evidence from the applicant’s father, and contended that the finding by the Tribunal in paragraph 47 of its reasons, that the applicant’s father gave evidence that he still talks to people in Liberia that keep him posted on what is happening, and the Tribunal considers that these friends and associates would be able to assist the applicant get settled when he returns to Liberia, was a finding that was not supported by the evidence and was not open. It was suggested that there was only reference to a friend singular.
The transcript does not support that submission. The transcript, on page 20, on a fair reading, reflects an answer in the affirmative to the question to the father as to whether the father has friends and associates that he speaks to in Liberia. It is correct that second sentence goes on to identify a particular friend. It does not, however, mean that there was no evidence of the applicant’s father having friends and associates.
This is a case where it is apparent on the evidence that the father had endeavoured to help the son in relation to his problems with stuttering.
The adverse finding by the Tribunal in relation to the applicant’s father having friends and associates which he would endeavour to ensure assisted the applicant on return to Liberia was an adverse finding that was logical, rational and open for the reasons given by the Tribunal. It is not the case that there was no evidence to support the adverse finding in the case, nor is the finding one that lacks an evident and intelligent justification.
No jurisdictional error as alleged in ground 2 is made out.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 29 March 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 9 June 2021
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