Fiv17 v Minister for Immigration

[2020] FCCA 702

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIV17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 702

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal had real doubt concerning a finding about whether the applicant was a member of a particular family – whether the Tribunal misunderstood the applicant’s claims – whether the Tribunal failed to give proper and genuine consideration to the evidence in support of the applicant’s claims – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR

  220

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005)

147 FCR 51

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Re The Minister for Immigration and Multicultural Affairs; Ex Parte

  Durairajasingham [2000] HCA 1

Applicant: FIV17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3780 of 2017

Judgment of: Judge Humphreys

Hearing date: 3 March 2020

Date of Last Submission: 3 March 2020

Delivered at: Parramatta

Delivered on: 3 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Zipser

Solicitors for the Applicant: Stamford Law Firm

Counsel for the Respondents: Ms Carr

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3780 of 2017

FIV17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant claims to be a citizen of Saudi Arabia. The applicant arrived in Australia on 17 November 2013 on a Visitor (Class FA) Subclass 600 visa. The applicant applied for a Protection (Class XA) visa on 25 November 2013.

2. A delegate of the Minister for Home Affairs (“the delegate”) refused to grant a protection visa on 21 November 2014. The applicant appealed to the Administrative Appeals Tribunal (“the Tribunal”) for merits review.

3. An initial hearing was held but on an appeal to this Court it was remitted back to the Tribunal by consent for a further hearing because the Tribunal failed, in the initial hearing, to consider the applicant’s claim that he would suffer significant harm in Saudi Arabia due to his political activities in Australia.

4. The second Tribunal hearing was held on 26 September 2017. In a decision dated 1 November 2017, the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant now seeks judicial review of the second Tribunal decision.

Administrative Appeals Tribunal Decision

1. The Tribunal’s decision is quite long and involves a detailed consideration of each of the applicant’s claims. For the purposes of this appeal, the grounds of application relate to a number of specific findings which the Court will summarise below. However, the entire decision will not be summarised. At paragraph 6, the applicant claimed he could not return to Saudi Arabia because of the persecution he had witnessed due to his Shi’a beliefs, his political opinions and his political opinions because he was a member of the ‘AN’ family.

2. Further, the applicant claimed he had participated in a demonstration against the Saudi Arabian government in Canberra. The applicant claimed that in February 2016, after his attendance at the demonstration, his brother had been called by security forces in Saudi Arabia and they told him they knew that the applicant was in Australia.

3. In its consideration of the applicant’s claims and evidence, the Tribunal accepted that he was a citizen of Saudi Arabia. The Tribunal noted the applicant’s claims that he may be tortured or executed by Saudi authorities if he was returned to Saudi Arabia because he was opposed to the current Saudi government, was from the ‘AN’ family and a practicing Shi’a.

4. At paragraph 70 to 71, the Tribunal found the applicant’s evidence, regarding his claims, lacked credibility. The Tribunal did not accept that the applicant had attended anti-government protests in Saudi Arabia or had been detained, beaten, imprisoned and/or charged by Saudi authorities as a result of his anti-government activities.

5. At paragraph 78, the Tribunal accepted that the applicant was able to leave Saudi Arabia, then travel to the United Arab Emirates (“UAE”) without any problems and then leave from Dubai airport using a Saudi passport in his own name. The Tribunal did not accept that this apparent ease of travel was because his name was only on a blacklist if he did not attend Court or that his name was not circulated outside Saudi Arabia but only internally.

6. At paragraph 79, the Tribunal noted country information that a joint security agreement between the Gulf Cooperation Council States, which includes both the UAE and Saudi Arabia, was signed in November 2012. Security and intelligence cooperation is highly coordinated between these countries. The Tribunal noted that the UAE has been very active in expelling non-citizens who it considers have links to Hezbollah.

7. In these circumstances, the Tribunal did not accept at paragraph 80 that the applicant was able to fraudulently obtain a genuine passport in his own name. Further, the applicant’s claim lacked credibility that a family member allegedly, with such a prominent link to the anti-government movement, would know and bribe, a presumably Sunni passport official, to give a passport to someone who was on a banned list.

8. In terms of claims to this Court, the relevant claims are contained in paragraphs 86 to 89 of the decision of the Tribunal. In paragraph 86, the Tribunal accepts that the applicant attended a demonstration in Canberra protesting the execution of Sheik ‘AN’ by the Saudi government in early 2016 and that he corresponded with New South Wales Police about protests in March and November 2015.

9. The Tribunal did not accept that these activities were indicative of a continuing pattern of anti-government activity from his time in Saudi Arabia, rather this was part of a deliberate scheme in which the applicant attempted to create a refugee profile. The Tribunal had previously found the applicant was not politically active in Saudi Arabia and that his participation in protests in Australia had not continued after he was refused a protection visa and the Tribunal found against him.

10. Paragraphs 88 and 89 deal with the applicant’s relationship with the ‘AN’ family. The Tribunal accepted that there are media reports that this family is targeted by the Saudi government. Given this and the applicant’s claimed connection with the family and the seriousness of the anti-government charges he claimed to face, the Tribunal found it lacked credibility that he would have been released from prison, a judge would have failed to turn up at this first trial, he would then have been able to leave Saudi Arabia and enter the UAE and then leave the UAE for Australia, while at all times using documents in his own name, if he were to be considered close and a part of the ‘AN’ family.

11. The Tribunal considered that while there may be connections of indistinct strength between, perhaps, one part of his family and the ‘AN’ family, it was equally true that part of his family may have no kinship with the other part of the ‘AN’ family that is linked to the family of his surname. That is, the relationship between the families was indistinct and there was no evidence before the Tribunal as to the absolute connection between the applicant and the ‘AN’ family.

12. The Tribunal considered this in light of the complementary protection claims in paragraph 95 onwards. The Tribunal stated that although it had disregarded the applicant’s protest attendance and correspondence with New South Wales Police, for the purposes of the applicant’s refugee claims under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), they did have regard to it in relation to the claims for complementary protection under s 36(2)(aa) of the Act. The Tribunal found it did not believe the activities were done as an expression of genuine political opposition but were undertaken for the purpose of creating a refugee profile.

13. The Tribunal was satisfied the applicant’s identity would not be known to Saudi authorities. There was nothing to identify the applicant other than as a face in the crowd. The applicant’s claim that he was photographed is based on oral testimony which lacked credibility. The applicant provided no independent country information that indicated that people at such protests had been subsequently targeted by Saudi authorities, nor was country information available to the Tribunal which suggested the same.

Grounds of Application

1. An amended application was filed with the Court on 20 December 2018. If leave has not been granted and to the extent that leave is required, leave is granted to rely on the amended application.

2. The grounds are as follow (verbatim):

   (1)The applicant claimed he was a member of the ‘AN’ family, and he feared persecution as a result if required to return to Saudi Arabia. The Administrative Appeals Tribunal (“the Tribunal”) found at [88] that “I do not accept that the applicant is or would be considered to be a member of the ‘AN’ family”. The language used by the Tribunal at [88] and [89] indicates the Tribunal had a real doubt concerning this finding. In the circumstances, the Tribunal was required to consider the possibility that the applicant was a member of the ‘AN’ family. Its failure to do so involved jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220).

   (2)The applicant claimed he led and spoke at a protest in Canberra in 2016 against the Saudi government and, as a result, he feared persecution if required to return to Saudi Arabia. The Tribunal, in assessing the complementary protection limb of the applicant’s visa claim, rejected the sur place claim at [95]. The Tribunal’s critical finding was that “I am also satisfied that the applicant’s identify would not be known to Saudi authorities”. The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal misunderstood the applicant’s claims concerning the protest, or did not give proper and genuine consideration to the evidence in support of the claim.

The Applicant’s Submissions

1. The applicant’s complaint in relation to the first ground relates to the finding at paragraph 88 that:

   I do not accept that the applicant is, or would be considered a member of the ‘AN’ family.

   And the conclusion of paragraph 89 that:

   Therefore, while there may be connections (of indistinct strength between one part of the ‘AM’ and ‘AN’), it is therefore equally true that part of ‘AM’ have no kinship with the ‘AN’ linked ‘AM’.

2. It is noted in paragraph 88 that the Tribunal lends more weight to the improbabilities in its decision in relation to the relationship between the applicant and the ‘AN’ family. It is suggested that a combination of the following matters indicates the Tribunal has a real doubt in its mind about the finding.

3. At the commencement of paragraph 88, being (a) the existence of the information at Court Book at page 202, which the Tribunal accepted as genuine and correct; (b) the weighing exercise which the Tribunal expressly engaged in; and (c) the Tribunal’s use of the language “I do not accept that the applicant is or would be considered to be a member of the ‘AN’ family”. The Court was referred to Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”) per Sackville J at [67] where the following is said:

   Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

4. It is submitted, on behalf of the applicant, that “a fair reading of the [Tribunal’s] reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct”. In these circumstances, it was submitted that the Tribunal was required to take into account the possibility that the applicant was or would be considered to be a member of the ‘AN’ family and thus face a real chance of persecution.

5. In relation to Ground 2, the applicant claimed that he led and participated in a demonstration against the Saudi government in 2016. At paragraph 95 of its decision, the Tribunal disregarded the applicant’s protest attendance and correspondence with the New South Wales Police for the purposes of refugee claims. The Tribunal had regard to the claims in assessing complementary protection but it did not believe that the applicant had participated in the protest as an expression of genuine political opposition.

6. The Tribunal was also satisfied that the applicant’s identity would not have been noticed by Saudi authorities, as there was nothing to identify him other than as a face in a crowd. The applicant’s claim that he was photographed was based on his oral testimony, which the Tribunal found lacking.

7. It was submitted that the applicant’s evidence was that he led the demonstrations in Canberra. The applicant’s migration agent provided the Tribunal with a copy of a colour photograph which indicates the applicant was visually identifiable. It was submitted the applicant was therefore not just a face in the crowd. In these circumstances, the Tribunal did not give a proper and genuine consideration to the evidence in support of the claim (see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [23] and NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [212]).

The First Respondent’s Submissions

1. In relation to Ground one, it was submitted that the Tribunal, at paragraphs 88 and 89, were not attended with sufficient doubt that required the Tribunal to consider the possibility that the applicant was a member of the ‘AN’ family.

2. At paragraph 88, the Tribunal wholly rejected the claim that the applicant was, or would be considered to be a member of the ‘AN’ family. This conclusion was based on the Tribunal’s findings that, if the applicant were considered to be a part of the family, he would not have been released from prison, he would not have been able to leave Saudi Arabia and travel to the UAE and them from the UAE using his own personal documents.

3. The Tribunal did consider the possibility there may be a kinship between some parts of the ‘AM’ family and some parts of the ‘AN’ family but equally that no kinship might exist between other parts. The Tribunal, however, found that such a finding did not overcome its creditability concerns, which it had set out for cogent reasons, regarding the applicant’s claims regarding treatment by authorities.

4. It was submitted on behalf of the first respondent that the expression that “there may be connections” does not amount to an expression of real doubt, such that the Tribunal was required to ask itself whether or not that finding was wrong in assessing whether or not there was a real chance that the applicant might, in the future, be persecuted for a Convention reason.

5. Ground 2 advances two propositions. Firstly, the Tribunal misunderstood the applicant’s claim regarding his attendance at the protest in Canberra by making a critical finding that the applicant’s identity would not be noticed by Saudi authorities. Secondly, the Tribunal did not give proper and genuine consideration to the evidence in support of the claim. The first respondent submits that both propositions must fail.

6. The Tribunal accepted at paragraphs 86 and 96 of its decision record that the applicant had attended a demonstration in Canberra in 2016 but found this was done for the sole purpose of strengthening his claims for protection. The Tribunal also found there was no evidence before it to indicate that the applicant’s attendance at the demonstration would come to the attention of the authorities in Saudi Arabia.

7. The only documentary evidence before the Tribunal was a photograph attached to submissions provided by the applicant’s representative. The applicant did not proffer any details for the provenance of that photograph, or that the authorities in Saudi Arabia would target those having participated in such a demonstration, or how his attendance would have come to the attention of authorities in Saudi Arabia, except via speculation that those at the Saudi Arabian embassy may have taken photographs.

8. In the absence of further details or evidence and given the Tribunal’s adverse credibility findings in relation to the applicant which it gave cogent reasons for, it was open to the Tribunal to find at paragraph 95 on the decision record that “there was nothing to identify [the applicant] other than as a face in a crowd”. To the extent that the applicant contends that the Tribunal failed to give “proper and genuine consideration” to the photograph, it was submitted that this rises no higher than a disagreement with the findings the Tribunal made which were open to it on the material and the evidence before it and that for the reasons the first respondent gave, the Court is being asked to engage in merits reviews.

Consideration

1. It is well established that the Tribunal is not required to accept uncritically any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at page 451). Credibility findings are a matter of par excellence for the Tribunal (see Re TheMinister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1). A credibility finding will be sound if it was open on the evidence in the materials before the Tribunal and is not tainted by any failure to afford procedural fairness or reaches a finding without a logical or probative basis or legal unreasonableness (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]).

2. Further, it is not the role of this Court to engage in merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272). It is important to remember that the Tribunal’s reasons should not be read with too fine an eye attuned to error.

3. Ground 1 asserts that he Tribunal was required to consider the possibility that the applicant was a member of the ‘AN’ family. The Court is satisfied that the Tribunal did consider this possibility; indeed, it made reference to the evidence contained in a document that was provided to it, but clearly rejected it.

4. In doing so, it considered all of the facts set out by the applicant, including his capacity to leave Saudi Arabia and then the UAE using his own personal documentation. The Court agrees with the first respondent that the use of the term “there may be connections” does not amount to an expression of real doubt about its conclusion at paragraph 88 that the applicant was not, or would be considered to be, a member of the ‘AN’ family and thus subject to a real chance of persecution upon his return.

1. The Tribunal had clear concerns about the credibility of the applicant. The Court is satisfied the finding that he was not at risk of persecution was a finding that was open to the Tribunal on the evidence and it was based on a reasonable conclusion that it came to. The Tribunal considered the possibility of links but concluded they did not apply to the applicant and he would not be considered a member of the ‘AN’ family. That is, the Tribunal had no real doubts and therefore there was no possibility and no requirement that it needed to consider the issue raised in Rajalingam. Ground one fails.

2. In relation to Ground two, the Tribunal clearly found that the applicant did attend the demonstration in Canberra but that this was done with the sole purpose of strengthening his claims for protection as opposed to any continuation of political activities that he was involved with in Saudi Arabia. It is conceded by the applicant that the only basis upon which the claim can be considered further is in relation to complementary protection. The Tribunal also clearly found there was no evidence before it to indicate that the applicant’s attendance at the demonstration would or had come to the attention of authorities in Saudi Arabia (see paragraph 95 of the Tribunal’s decision).

3. As the first respondent points out, there was little evidence before the Tribunal except speculation that those at the Saudi Arabian embassy may have taken photographs (see paragraph 52 of the Tribunal’s decision).

4. The finding of the Tribunal that “there was nothing to identify the applicant other than a face in a crowd” was open to it. There was nothing illogical, irrational or unreasonable in coming to that finding. I am satisfied that it did give a proper and genuine consideration to the evidence and it rejected it.

5. The Court agrees with the first respondent. This complaint amounts to no more than a disagreement with the factual findings of the Tribunal and seeks merits review.

6. Accordingly, no jurisdictional error is established in Ground two.

Conclusion

1. The application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 8 April 2020