FBB24 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1236

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FBB24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1236

File number(s):	PEG 243 of 2024
Judgment of:	JUDGE STREET
Date of judgment:	18 November 2024
Catchwords:	MIGRATION - Safe Haven Enterprise visa – application seeking constitutional writ in respect of Administrative Appeal Tribunals decision – no jurisdictional error - application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	34
Date of hearing:	31 October 2024
Place:	Perth
For the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms V Long-Droppert
Solicitor for the First Respondent:	Sparke Helmore
For the Second Respondent:	The Second Respondent did not appear

ORDERS

PEG 243 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FBB24

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	18 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application filed on 18 July 2024 is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $6,500.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET

1. On 18 July 2024, the applicant commenced proceedings seeking a constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 16 July 2024 affirming a decision of the delegate not to grant the applicant a protection visa.  The applicant was found to be a citizen of Nigeria and arrived in Australia holding a visitor visa on 13 November 2023.  On 14 November 2023, the visitor visa was cancelled while the applicant was in immigration clearance, and the applicant is currently detained at Yongah Hill Immigration Detention Centre. 

2. Prior to arriving in Australia, the applicant resided in Canada, where he claimed asylum but ultimately withdrew that application. On 24 November 2023, the applicant applied for a Safe Haven Enterprise visa. On 7 December 2023, the applicant attended an interview with the delegate, and on 12 March 2024, the delegate refused the visa on the grounds that the applicant failed to meet the criteria under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) and failed to meet the criteria under s 36(2)(aa) of the Act.

3. On 19 March 2024, the applicant applied to the Tribunal for review of the delegate's decision. The applicant was invited to and attended a hearing before the Tribunal on 6 June 2024 and on 8 July 2024. On 8 July 2024, the applicant was invited under s 424A of the Act to comment on adverse information by 15 July 2024. That information related to inconsistency seized between the applicant's evidence in his Safe Haven Enterprise visa and his previous visa applications in which he had provided evidence which undermined the credibility of his claims. On 12 July 24, the applicant provided a response to the request under s 424A of the Act and other supporting material, and the applicant had provided earlier submissions on 30 May 2024, 27 June 2024, 4 July 2024, and 5 July 2024.

4. The grounds in the applicant's application were as follows:

   1. The decision of the Tribunal:

   a. is affected by an error of law; and

   b. denied the applicant procedural fairness

   2. I have made an application for assistance through Victoria Legal Aid and am waiting for a decision. I will provide further particulars in due course.

5. The grounds in the applicant's submissions filed on 22 October 2024 were as follows:

   1.The Tribunal failed to properly consider or give reasons for rejecting critical evidence provided in support of my claim of fear of persecution under section 5J of the Migration Act 1958

   2.The Tribunal did not apply the correct legal test for assessing my fear of harm, contrary to the standard required under the Refugee Convention.

   3.The Tribunal was not fair, harsh and lastly was not honest in some situations.

   4.The Tribunal denied me procedural fairness by failing to take reasonable steps to allow for my witnesses to provide oral evidence

   5.The Tribunal failed to consider (or ignored) relevant material, like my interview with the ABF at the airport when I arrived Australia.

   6.The Tribunal member relied on irrelevant material, An example of this is in paragraph 135 of the decision, I questioned the relevance of relying on my beliefs about the justice system.

   TRIBUNAL’S DECISION

6. The Tribunal in its reasons identified the background to the application for review and set out the relevant law.  The Tribunal identified the applicant's background and where he had lived, as well as his family, and identified the applicant making inconsistent and irreconcilable claims, which included the applicant not raising claims that he now raises while seeking protection in Canada, omitting a claim, demonstrating a willingness to give false evidence in connection with his visa applications, as well as the improbability and implausibility of his claims.  The Tribunal identified, allowing for the effect of past trauma in assessing the applicant's credibility, but identified the absence of contemporaneous evidence in respect of the events said to have caused the past trauma, and the applicant willingly returning to Nigeria, despite the experienced he claimed to have experienced, as well as the limited evidence lacking detail as to the effect of the past trauma on the applicant. 

7. The Tribunal referred to the applicant's psychotherapy assessment report from March 2020, which appeared based on a claimed arrest detention, torture and escape in 2016, but the psychotherapy session report fails to refer to the applicants claimed arrest, detention, torture and escape in 2016.  The Tribunal referred to the clinical records from the International Health and Medical Services provided to the Tribunal, in which the applicant recounted claims about his 2016 arrest and torture, referred to scars on his forearms.   The Tribunal also referred to the applicant's referral to counselling.  The Tribunal found there was insufficient material to persuade the Tribunal that the inconsistencies in the applicant's accounts or failure to raise aspects of his protection claims are explicable by the effects of past trauma.  The Tribunal found that the deficiency in the applicant's evidence and the associated impact on his credibility cannot be explained and is not accepted as explicable by his past trauma.

8. The Tribunal referred to the applicant making several false and misleading statements in his visa applications in Australia.  The Tribunal referred to the applicant's second visitor visa application, where he expressly claimed to be happily married, identifying his wife and three children living in Nigeria.  In the applicant's visitor visa applications, and in his protection visa, he said he was not aware of any pending criminal charges and has never been charged with an offence, but when interviewed by the delegate, the applicant alleged he had been the subject of arrest in Nigeria.  The applicant also gave evidence that he was charged with offence in Canada.  The applicant alleged that the charges against him in Canada were still pending and listed for trial in June 2024.  The Tribunal referred to the applicant's false answers in relation to pending criminal charges and being charged with an offence, which diminished his credibility.  The Tribunal found the applicant's lack of candour, and willingness to make false statements to secure visas, is of significant concern and do not reflect well on the applicant's credibility.

9. The Tribunal referred to contradictions and inconsistencies in respect of the applicant's claim to be a member of the IPOB in Nigeria. The Tribunal identified the different claims in relation to the joining of the IPOB in 2016 and claiming he became a member in October 2010.  The Tribunal referred to the applicant's explanation about joining the MASSOB, and the absence of an earlier claim to have joined that entity.  The Tribunal referred to the implausibility of the applicant's explanation in relation to not clarifying that he joined MASSOB in 2010, and did not accept the applicant's submissions about his credibility.  The Tribunal found the applicant's explanation for his inconsistent claims unpersuasive and did not accept the inconsistency in the applicant's accounts regarding his membership of MASSOB and later IPOB.  The Tribunal found the applicant's inconsistent accounts undermined the claim he joined the IPOB and undermined his credibility more broadly.  The Tribunal referred to the applicant's claim that he was arrested in July, held in custody for two weeks and tortured, and that he escaped by paying a bribe.

10. The Tribunal found the applicant's absence of any claim in relation to the two-week incident in Nigeria in July 2006 in any claim in Canada was inexplicable.  The Tribunal found it implausible that the applicant escaped by paying a bribe, and that the failure to mention the claim in relation to seeking asylum in Canada undermined his credibility.  The Tribunal found the applicant's narrative about bribing his way out of custody to be implausible.  The Tribunal was not satisfied the applicant used an alias, and did not accept the applicant's travel movements are consistent with a person who was wanted by the DSS and had come to the adverse attention of the authorities as a person suspected of using an alias.  The defendant did not accept that the applicant's evidence that he used in the alias is credible.

11. The applicant was asked about his return to Nigeria, and the applicant's explanation of his alleged alias.  The applicant was asked about a motor vehicle incident in May 2017, and that when he was pulled over, he had valid visas in the United States, and did not depart for Nigeria until August 2018.  The applicant was asked about his travel to the United Arab Emirates in February 2018 and an incident in August 2018.  The applicant departed Nigeria with his family for the United States in August 2018 and remained in the United States until they travelled to Canada in December 2018.  The applicant's wife separated from him on 6 December 2022 and removed the applicant from her claim for permanent residency in Canada. The Tribunal referred to the applicant's explanations about the withdrawal of his protection visa application.

12. The Tribunal referred to the applicant leaving Canada and returning to Nigeria in May 2023, and resiling there until November 2023.  The Tribunal accepted the applicant's evidence that he obtained a new passport, which enabled him to deceive the department when he sought a passport.  The Tribunal did not accept the applicant was a member of MOSSAB from 2010, or that he joined the IOPB in 2010, 2015, 2016 or at any time whilst in Nigeria.  The Tribunal did not accept the applicant used an alias, or that the applicant was ever wanted by the DSS under an alias or otherwise. 

13. The Tribunal did not accept the applicant was arrested, tortured and detained for two weeks, and escaped custody by paying a bribe.  The Tribunal did not accept the applicant was pulled over and harmed, or harmed, or that his vehicle was destroyed in 2017.  The Tribunal did not accept the applicant was in any adverse contact with the authorities in Nigeria, and did not accept the applicant paid bribes to avoid suspicion, arrest, interrogation or harm in Nigeria.  The Tribunal did not accept the applicant's claims about the IPOB, or past harm he claims to have suffered in Nigeria.

14. The Tribunal referred to the applicant's claim that he joined the IPOB in Canada.  The Tribunal found the applicant's evidence of joining the IPOB in Canada postdates the applicant's asylum claims in Canada.  The Tribunal referred to the applicant's claims concerning The AEIDA Foundation, and did not accept that the applicant operated at The AEIDA Foundation or any of his other businesses for the benefit or at the direction of the IPOB.  The Tribunal was not satisfied the applicant would be imputed as a member of the IPOB because of his ethnicity, his membership from the IPOB in Canada, or his involvement in the Biafran community in Nigeria or Canada.  The Tribunal did not accept the applicant will be imputed as a member of the IPOB, or that his membership of IPOB Canada is known by or will become known by the authorities in Nigeria.

15. The Tribunal referred to the applicant's claim that he is a bisexual man and referred to his alleged relationship with Darryl.  The Tribunal referred to the applicant's claim of a relationship with Dele, a Nigerian man in 2023. The Tribunal referred to the applicant's alleged witnesses in relation to being a bisexual man, and that neither of those witnesses were available to give evidence on 8 July 2024, and that no adjournment was sought to enable witnesses to be available to give oral evidence.  The Tribunal referred to being unable to test those witnesses' evidence and found that the statements did not overcome the Tribunal's concerns about the credibility of the applicant's claims.  The Tribunal referred the applicant's involvement with the LGBT organisations in Australia.  The Tribunal was not satisfied the applicant engaged in those organisations for a reason other than to strengthen his refugee claims.

16. The Tribunal found that s 5J(6) of the Act only applied to the applicant and not the views of a particular witness. The Tribunal was only prepared to give that witness's evidence slight weight. The Tribunal did not accept the applicant is a bisexual man. The Tribunal found that the applicant's claims in this regard have been fabricated to secure protection. The Tribunal referred to the applicant's evidence in relation to Darryl, and the differing descriptions in relation to Darryl's ethnicity, raising concerns in relation to the applicant's reliability and credibility. The Tribunal referred to the applicant's willingness to provide false and misleading answers about criminal charges in Canada, both in the context of his application for his Visitor visa and his failure to correct information in his protection visa. The Tribunal referred to the inherent implausibility of the applicant's events and the improbability of the applicant exposing himself to a greater risk. The Tribunal, having considered the applicant's credibility about his sexuality, both globally and separately from the credibility of his claims relating to the IPOB, and rejected entirely the narrative concerning Darryl and Dele. The Tribunal did not accept that the applicant is or was a bisexual man.

17. The Tribunal referred to the applicant's claims in relation to being a Christian and evangelist and a proselytiser.  The Tribunal accepted that the applicant is Christian.  The Tribunal did not accept that the applicant is an evangelist.  The Tribunal did not accept that the applicant would proselytise in the sense of seeking to convert people to his faith. The Tribunal did not accept the applicant would proselytise in the sense of promoting his own faith among people of similar belief.  The Tribunal referred to country information.

18. The Tribunal did not accept that the applicant is or was a member of the IPOB in Nigeria, and did not accept the applicant's alleged involvement with the IPOB in Canada, his ethnicity, and his involvement with Biafran communities would result in the applicant being imputed to be member of the IPOB or a Biafran secessionist.  The Tribunal found that the chance of the applicant being harmed because of his actual or imputed relationship to the IPOB, Biafran secessionist movement or communities is remote.  The Tribunal was not satisfied the applicant faces a real chance of serious harm from Nigerian authorities on account of his political opinion, involvement with the IPOB, ethnicity or participation with the Biafran secessionist movements or communities. 

19. The Tribunal referred to the applicant's Christian faith and was not satisfied the applicant is a person who faces more than a remote chance of harm because of his Christian faith.  The Tribunal was not satisfied there is a real chance that the applicant faces a real chance of harm because of his religion, now or in the reasonably foreseeable future, if he were returned to Nigeria.  The Tribunal identified that it was not satisfied that the applicant faced a real chance of serious harm, now or in the reasonably foreseeable future, because he is or would be perceived to be bisexual upon return to Nigeria, now or in the reasonably foreseeable future.  The Tribunal was not satisfied the applicant faced a real chance of serious harm arising from deterioration of his mental health, now or in the reasonably foreseeable future, if he returned to Nigeria. 

20. The Tribunal referred to the applicant's claim to be a failed asylum seeker and found there is no real chance of the applicant being charged with any offence if he returns to Nigeria. The Tribunal was not satisfied that Nigerian authorities would know the applicant claimed asylum in Australia. The Tribunal found that it was not satisfied the applicant would face a real chance of serious harm, now or in the reasonably foreseeable future, if he returned to Nigeria as a failed asylum seeker. The Tribunal considered the applicant's claims cumulatively, and concluded the applicant does not have a well-founded fear of persecution. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) of the Act. The Tribunal also found the applicant failed to meet the criteria for complementary protection under s36(2)(aa) of the Act and affirmed the decision under review.

    FINDINGS AND CONCLUSIONS

21. In relation to ground 1, on the face of the Tribunal's reasons, the Tribunal correctly identified the relevant law and correctly applied the relevant law. No error of law has been identified in relation to the conduct of the review by the Tribunal. The procedural fairness obligations in the conduct of the review are outlined in Div.4 of Part 7 of the Act and is taken to be exhaustive of the requirement of the natural justice hearing rule pursuant to s422B.. The applicant was invited to attemd a hearing in compliance with s425 and s425A of the Act. The applicant attended the hearings on 6 June 2024 and 8 July 2024 with his representative. The Tribunal complied with s424A and s424B inviting the applicant to provide further information. The provision of some information that was exempt under s 424A(3) does not give rise to any breach or jurisdictional error. The applicant was given an opportunity to clarify inconsistencies in his evidence and the applicant attempted to address the same in his submissions dated 12 July 2024 to which the Tribunal expressly referred in para. 7, 27(f), 51, 76, 168, 178-181, 184 and 196 of its reasons. The Tribunal, on the facts and material before the Court, complied with its statutory obligations in the conduct of the review. Further, the Court finds on the facts and material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review, and no jurisdictional error is made out by ground 1 of the application.

22. Ground 2 of the application does not articulate any alleged jurisdictional error.

1. The applicant’s oral submissions addressed in substance the same matters as raised by the paragraphs in the applicant’s submissions filed on 22 October 2024. The applicant complained that the Tribunal didn’t believe anything he said, however that proposition is not supported by the Tribunal’s reasons. The Tribunal's reasons reflect a genuine intellectual engagement with the whole of the applicant's claims and evidence and reflect a logical, intelligible and rational basis for rejecting the applicant's claims. The Tribunal’s reasons do not support the assertion of predetermination or closed mind by the Tribunal. On the face of the material before the Court the Tribunal conducted the review with an open mind capable of persuasion as to the merits. It was part of the duty of the Tribunal to make findings of fact and assess the applicant’s credibility. The adverse findings by the Tribunal are not conduct by reason of which a first minded lay observer might reasonably apprehend that the Tribunal might not bring an open mind to the determination of the matter on its merits. The Court finds there was no conduct by the Tribunal that makes out any jurisdictional error on the grounds of alleged bias.

2. The Tribunal expressly considered the applicant’s mental health at para 28-38 including psychotherapy assessment and clinical records and deal with the applicant’s claim at para 190-193. The Tribunal correctly identified that the IHMS clinical records note that the applicant whilst in Australia declined all medication for his alleged mental health. The Court accepts that the Tribunal had a genuine intellectual engagement with the applicant’s mental health claim and made adverse findings dispositive of that claim, which findings were open to the Tribunal.

3. The applicant’s disagreement with the reasons at para 104 does not make out any jurisdictional error. It was open to the Tribunal to make findings about the want of documentation about the removal of the applicant from his wife’s residency application in Canada. The applicant has not identified any provided contrary to the finding of the Tribunal in para 104. The adverse finding by the Tribunal in para 104, 106 and 113 are not conduct by reason of which a fair minded lay observer might reasonably apprehend the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits. The adverse finding in relation to membership of the applicant in Nigeria was open to the Tribunal as was the adverse finding in para 131. The applicant’s disagreement with para 138 and assertion as to the truth do not make out any jurisdictional error by the Tribunal. The disagreement with the Tribunal’s reasons at para 140 and 140-146, reflect disagreement with the adverse findings and do not make out any error. As to para 150 and the interview with the Australian Border Forces, the Tribunal found that the applicant had sufficient time to provide any corroborating evidence and it was for the applicant to provide material to make out his claims. The Tribunal provided a rational and logical justification for not issuing a summons to the Australian Border Force. The adverse findings in para 150 were also open to the Tribunal.  Those adverse findings are not conduct that meets the double might test of alleged apprehended bias. The Tribunal’s reasons are consistent with the Tribunal bringing an open mind to the determination of the matter on its merits. The applicant’s allegation of bias, actual or apprehended is not made out. No jurisdictional error arises from the applicant’s submissions

4. As to paragraph 1 of the applicant’s submissions as to alleged error, it was open to the Tribunal to made adverse credit findings and the Tribunal gave logical and rational reasons in support of the same as summarised above.  The applicant's disagreement with the adverse credibility finding does not identify any jurisdictional error. No jurisdictional error is made out by paragraph 1 of the applicant's submissions of 22 October 2024. 

5. In relation to paragraph 2 of the applicant's submissions of 22 October 2024, the Tribunal correctly identified the relevant law, and on, the face of the Tribunal's reasons, and correctly applied the relevant law. Paragraph 2 of the applicant’s submissions is, in substance, a disagreement with the adverse finding and does not identify any jurisdictional error.

6. In relation to paragraph 3 of the applicant’s submissions, on the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before this Court, the Tribunal complied with obligations of procedural fairness in the review process. Paragraph 3 of the applicant’s submissions is in substance an invitation to merits review, and no jurisdictional error is made up by paragraph 3 of the applicant’s submissions dated 22 October 2024.

7. In relation to paragraph 4 of the applicant’s submissions, it is apparent that the Tribunal provided the applicant with an opportunity to call evidence, and that the applicant's witnesses were not available to provide evidence. It was for the applicant under s 5AAA of the Act to provide material to make out his claims for protection, and in circumstances where the applicant was properly invited to attend a hearing and a further hearing on 8 July 2024, it cannot be said that the Tribunal's decision to proceed to determine the matter lacks an evident and intelligible justification. No jurisdictional error is made out by paragraph 4.

8. In relation to paragraph 5 of the applicant’s submissions, on the face of the Tribunal's reasons, the Tribunal considered the whole of the material before the Tribunal. The Tribunal addressed the applicant’s assertion concerning the applicant's interview with the ABF and gave an evident and intelligible justification for not issuing a summons to the ABF given the time the applicant had to obtain alleged corroborating material. No jurisdictional error arises by reason of paragraph 5.

9. In relation to paragraph 6 of the applicant’s submissions, the analysis of the applicant's credibility in paragraph 135 was logical and rational and cannot be said to be an irrelevant consideration.  The Court is not persuaded that the Tribunal took into account any irrelevant material so as to give rise to any jurisdictional error.  No jurisdictional error is made out by paragraph 6.

10. For the reasons given above nothing raised by the applicant in his written submissions or orally establishes any jurisdictional error.

11. The application filed by the applicant on 18 July 2024, the applicant's written and oral submissions do not make out any jurisdictional error. Accordingly, the application filed 18 July 2024 is dismissed.

12. It is for these reasons the Court makes the above orders.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       18 November 2024