Fif17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 213
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 213
File number(s): SYG 3759 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 15 February 2024 Catchwords: MIGRATION – Application for a protection visa – Refusal – Review of AAT (“Tribunal”) decision Legislation: Tribunals Amalgamation Act 2015 item 15AG of sch.9
Migration Act 1958 (Cth) ss 36, 474
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 17 Date of hearing: 15 February 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mills Oakley Solicitor for Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3759 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $3,900.
3.The name of the first respondent in the court record be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
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 Cameron
INTRODUCTION
The applicant is a citizen of Fiji who arrived in Australia on 8 May 2015. On 15 July 2015 he lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Fiji for reasons relating to discrimination he suffered in Fiji because of his Vanuatuan Melanesian heritage. On 3 December 2015 the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all relevant times the Act provided as follows:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
BACKGROUND FACTS
The applicant’s claims for protection were made in his protection visa application, in written submissions, evidence attached to his review application form and in further written submissions provided in advance of the Tribunal hearing conducted on 14 September 2017.
In his written submissions, the Minister provided a brief summary of some of the material facts in this matter. I adopt that summary:
4.On 15 July 2015, the applicant applied for a Protection visa. His claims for protection are set out in his Protection visa application. In summary, the applicant claimed that he was discriminated against in Fiji on the basis of his Melanesian Vanuatu ethnicity. He claimed that during the previous election, he was forced to vote for Fiji First by the Fijian military or face losing his land. The applicant also claimed that he would be arrested for his participation in political demonstrations in Australia. The applicant provided multiple documents in support of his application, including newspaper articles, written statements, and country information.
(References omitted)
The following facts also emerge from the Tribunal’s decision on the factual circumstances of this claim.
The Tribunal recorded that while he resided in Fiji prior to 2015, the applicant never voiced his political opinion, joined a political movement, or suffered personal harm due to politics, which was because he could not voice his political opinions in Fiji due to fear of being reported to the military and being visited by soldiers. The applicant is recorded as having said that he feared persecution from Fijian Government authorities in the future due to his political activities while living in Australia, including:
(a)publicly commenting on social media in support of Rajendra Chaudhry, an anti-government political activist who was very vocal about the government regime;
(b)becoming a member in 2015 of an anti-Fijian government organisation in Australia named PISAI, which he claimed "safeguards people from political things" and which met on a weekly basis;
(c)attending a demonstration of thousands of people against Prime Minister Bainimarama in Liverpool in 2016 where he held a placard which read "stop the violence, stop the torture". He alleged that his photo was taken by Fijian soldiers who said to him "when you come home we have all the pictures and will take you straight to the barracks." He claimed the relevant photo of him had been published across social media.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act.
The Minister summarised the Tribunal’s findings in the following terms which I adopt:
11.Referring to country information about Melanesians and property rights in Fiji, the Tribunal found the possibility that the applicant would be removed from his land to be remote, and noted that Vanuatu Melanesians were able to buy and lease land.
12.The Tribunal found there was no independent country information to support the applicant’s claim that he faced harm for posting on political blogs and Facebook in support of Rajendra Chaudhry. The Tribunal noted that DFAT had posited that “personal blogs and other forms of social media, both for and against the interim government, operate with relative freedom, unlike traditional media”, and preferred that evidence to the claims made by the applicant. The Tribunal did not accept that the applicant would suffer serious or significant harm for his online support of Chaudhry.
13.The Tribunal considered that the applicant had provided a “vague” explanation of PISAI, and therefore did not accept that: he had joined the organisation; he had attended weekly PISAI meetings; he had attended a demonstration in Liverpool in 2016. Having rejected those claims, the Tribunal did not accept that the Fijian military had threatened the applicant and taken photos of him. The Tribunal was not satisfied the applicant had voiced an anti-Fijian government opinion in Australia. The Tribunal observed that the applicant had not claimed to have any involvement in political movements in Fiji. Therefore, given that it had already found that the applicant had not been politically active in Australia, it found that the possibly of the applicant voicing a political opinion upon his return to be remote.
14.The Tribunal observed that the applicant had not claimed to have had a “high public profile” or “leadership role” in any organisation, and even if it had accepted he attended weekly PISAI meetings or attended a demonstration (which it did not), it did not accept that: any such activity would have brought him to the attention of the Fijian government; or that he would be perceived upon return as being anti regime on the basis of an alleged association with either PISAI or the Fijian Native Government in Exile.
15.The Tribunal did not accept that the applicant would be viewed by the Fijian authorities as inciting sedition and urging political violence.
16.The Tribunal gave weight to country information which indicated there was “greater freedom in terms of expressing robust opposing political views in Fiji”, but also accepted that there was country information that indicated that “Prime Minister Bainimarama has at times made threatening comments in relation to those he perceives as his opponents”. The Tribunal found there to be no evidence that the Fijian government had any interest in PISAI or the Fijian Native Government in Exile’s members. Further, the Tribunal found that on the basis of the applicant’s “limited knowledge of the organisation”, it considered that the applicant’s claim to have been involved in PISAI was likely “inspired to a significant degree by his desire to embellish his claims for protection in Australia”.
17.The Tribunal found that the applicant did not hold “a genuine anti-government political opinion or that he will seek to have any involvement in any anti-government political movements in Fiji”.
18.Based on the evidence before it, the Tribunal was not satisfied there was a real chance the applicant would face serious harm amounting to persecution for reason of his real or imputed political opinion if he were to return to Fiji now or in the reasonably foreseeable future or a real chance that the applicant would suffer serious or significant harm upon his return to Fiji.
(References omitted)
THE PROCEEDING IN THIS COURT
In the application commencing the proceeding the applicant alleged:
1. Evidence overruled by immigration and Tribunal
2. Errors in copies
3. Unfair decisions made
As an initial comment, I should observe that none of the allegations made in the initiating application have been particularised by reference to any material facts or circumstances. To that extent, they lack material substance and are liable to be dismissed on that ground alone.
Ground 1
It is unclear what the first ground of the application means, but it should first be observed that, to the extent that the reference to “immigration” is a reference to the decision of the Delegate, the Court has no jurisdiction to review that decision. The Act limits the Court’s relevant powers of review to the Tribunal’s decision. Although it may be inferred that the first ground of the application asserts that the Tribunal reached factual conclusions or dealt with the evidence in such a way that some evidence was not considered while other evidence was considered, there is no argument made that the conclusions which the Tribunal reached from its analysis of the evidence were illogical or unreasonable in any way.
Absent such arguments, this ground is really an allegation that the Tribunal should have reached factual conclusions different from the ones it did reach. The Court has no power to substitute its view of the facts for those of the Tribunal. Subject to arguments concerning legal error, it is exclusively within the Tribunal's jurisdiction to determine which facts it accepts, which it does not accept and the weight to be given to the former. In my view, the first ground of the application does not disclose a basis upon which the Tribunal's decision should be set aside.
Ground 2
Absent particularisation, the allegation that there were “errors in copies” cannot be understood in any meaningful way. As things stand, it discloses no basis upon which the Tribunal’s decision should be set aside.
Ground 3
The allegation of there having been unfair decisions seems to be an allegation that the Tribunal’s decision was unfair to the applicant. That is no more than an assertion that the Tribunal should have reached the decision sought by the applicant. In other words, it seeks reconsideration of the merits of the visa application. As stated earlier in these reasons and explained to the applicant at the hearing of this application, the Court has no power to reconsider the visa application and the factual matters before the Tribunal, its role being simply limited to determining the absence or presence of jurisdictional error affecting the Tribunal’s decision. Consequently, this ground discloses no basis upon which the Tribunal’s decision should be set aside.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 6 March 2024
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