FKV17 v Minister for Immigration
[2018] FCCA 2260
•20 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FKV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2260 |
| Catchwords: MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.438 |
| Cases cited: SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 |
| Applicant: | FKV17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG1233 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 20 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Application for extension of time to file the Application dated 12 December 2017, and amended on 14 March 2018, and further amended on 16 August 2018 is refused.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG1233 of 2017
| FKV17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, FKV17, is a citizen of Uganda. He first arrived in Australia on 5 July 2013 on a prospective spousal Visa. On 14 July 2014, his prospective spousal Visa was refused by the Department. On 26 August 2014, the Migration Review Tribunal found that it had no jurisdiction to review that refusal.
On 2 October 2014, the Applicant applied for a protection Visa. A delegate of the Minister refused to grant that Visa on 24 July 2015. The Applicant asked the Administrative Appeals Tribunal (“the Tribunal”) to review the matter. On 9 August 2017, the Tribunal affirmed the decision.
This meant that the Applicant had 35 days from 9 August 2017 to ask this Court to judicially review the decision of the Tribunal. The Applicant filed his application on 12 December 2017, which was 125 days after the decision of the Tribunal. Therefore, the Applicant is 90 days out of time.
This is an application for leave to file out of time. I did hear full argument on the merits of the substantive application.
The Claims of the Applicant
In short compass, the Applicant claimed to be born in Pabbo, Amuru in Uganda. He lived in his home village from 1983 to 1995. At the end of 1995, he claimed his parents sent him to stay with his uncle in Lubaga-Kampa as a refugee. He claims that this occurred because his parents were worried about the Lord Resistance Army (“the LRA”) in the northern part of Uganda. The LRA were abducting children and killing people in the region.
The Applicant said that he left all of his brothers and sisters at home and live with his uncle and attended school until October 2001. He said his current wife, Jane, was also in that area and that they were neighbours at this time.
The Applicant said that when his uncle passed away, his aunt then mistreated him and, in effect, threw him out of the home. Jane and her family had already left for the refugee camp in Kenya. A neighbour gave him some money to go back to his original home area.
When he arrived there he was told that the LRA had been into the area and had killed many people. He was told the survivors were taken to a displaced person camp. As he was walking to a village, the LRA ambushed him and he ended up living with the LRA for three months; that is, until January 2002.
He claimed that, on one day, he was gathered together with other people and was told they would be set free but they had to tell other people that the LRA were fighting for freedom and a change of government was needed. He said that he was part of a group that was left in the jungle and that they were on their own for a week until they were found and taken to the displaced person camp.
At this camp, he found his brother, who had a wife and children, and his sister. The Applicant said that he asked them where his parents and other siblings were and the reply was that they did not know. His siblings told him the tale of the LRA sacking the village and that his parents and his other siblings were still missing.
The Applicant said that he lived in this camp for about four years. He went to a primary school and he was supported by the UNHCR.
The Applicant said that, in 2005, he fell in love with a girl called A. He did not know that she was a Muslim. She became pregnant with his child. The Applicant said that the parents of A took him to a place close to their mosque and beat him nearly to death. He was told that he had broken Sharia law. He said that he was tortured for about two months and was living the life of a slave.
The Applicant said that a security guard found him and freed him. He said that A had decided to have an abortion and in attempting to abort the child, A had died. He said that the family wanted to kill him by stoning him that morning. He said that the family had abducted his sister and killed his brother.
The Applicant said that he escaped to the Holy Rosary Church under the protection of a Bishop. He was received as an orphan and he stayed there. He said that the Church connected him with a trust which protected war affected children through paying school fees accommodation and clothes. He said that he was supported until 2010 and, from February 2011 to June 2012, he did voluntary work at the church.
He said that during this time he re-established contact with Jane. They married in December 2011 and Jane took him to Nairobi for safety. He said that he lived in Nairobi from 1 June 2012 until 25 May 2013 when he was granted a Visa.
He said that he went back to the displaced person camp to find out about his relatives and found his brother’s wife. She informed him that the family of A was still looking for him so he only stayed for two days. When he returned, he had heard that 10 men went to the house of his brother’s wife asking for the Applicant. He said that those men told her that if she did not show them where the Applicant was, she would be killed. He said she was beaten and left very weak and taken to hospital.
The Applicant said that his parents, sister and brother are now dead and that he has three nephews and a niece in Pabbo.
The Applicant said that he fears that he will be forcefully kidnapped and recruited by the LRA if he returns to Uganda.
When the Applicant appeared before the Tribunal, he repeated the claims. He clarified that he had been in a relationship with A for about 18 months. She did not want him to meet her parents. He now believes that A was hiding her religion from him.
He said that she told him that she was pregnant and was upset and that she wanted to abort the child. He said she told him this before she told him that she was a Muslim. He said that they could care for the baby and still stay together but she said that she could not do that because the child was conceived out of wedlock and that the Applicant was not Muslim. She told him that because of her age, her father would kill her.
He said that someone then told her that A was dying. They told her that she had tried to take some herbs or tablets to get rid of the baby and had become very sick. She then passed away. After this, her family started looking for him and so he hid. He said that they found him two days later and took him away and that he was locked in a room. He was told that A was dead because of him and he was beaten. He said he was there for several days, locked in a deep storage room and was not given food or water. He said that a guard gave him some food. He said that the guard told him that he (the Applicant) was to be killed the next day and then told him how to escape.
He said that he did not tell the police once he had escaped. The mission was a long way from the displaced persons camp. He said that he asked people about his brother and sister because he could not go back to the camp. He said that he was told that his brother had been intentionally hit with the vehicle and killed and that it was someone from the family of A, who was responsible. He said he did not know what happened to his sister. He said that the people at the mission did not concern themselves about his attempts to find out information about his brother and sister. He said that the family of A did not find him while he was at the mission.
He was asked what he fears if he returns to Uganda and he said that he fears that the family of A would still want revenge. He fears that they would still want to harm him even though time has passed.
He said that he also fears that it would be difficult for him to live in Uganda emotionally and financially. He said that northern Uganda is not stable and there could be war. When asked why he could not relocate from the area given that he had lived at the mission safely, he said that it is costly to relocate. He said his food and accommodation was provided for him in the mission and that he always stayed away from public events. He said that it could not be guaranteed that he would not be recognised. He said it was implausible for him to move as he would not have family connections and have no financial support.
Consideration by the Tribunal
The Tribunal thoroughly assessed all of the claims of the Applicant. The Tribunal found that the Applicant was a credible witness. The Tribunal was satisfied that the Applicant’s parents and most of his siblings disappeared when the LRA took over the town. The Tribunal was also satisfied that the Applicant was abducted by the LRA in his home region when he was aged 12. The Tribunal was satisfied that the Applicant was forced to live with the LRA for three months.
The Tribunal was satisfied about the Applicant having a relationship with A. The Tribunal was satisfied that the family of A blamed him for her death and abducted him for a short time with the possible intention of killing him. The Tribunal accepted that the Applicant escaped and lived in a mission for some time after that. The Tribunal accepted the Applicant’s explanation for the differences in his account to the department and his account to the Tribunal.
The Tribunal looked at whether there was a well-founded fear of persecution for a convention reason. Whilst the Tribunal accepted that the family of A may seek to harm the Applicant upon return to Uganda, the Tribunal found that the essential and significant motivation for the persecution feared by the Applicant, is revenge. This is not a convention reason.
The Tribunal referred to a number of sources of country information when looking at the question of whether there was a real chance of persecution from the LRA if the Applicant returned to Uganda. The Tribunal found that there is little LRA presence in the region where the Applicant would be relocated and so was not satisfied that there was a real chance of persecution from the LRA.
The Tribunal looked at whether there was a real chance of persecution for emotional, economic or political instability reasons and concluded that they were not satisfied that the Applicant has a well-founded fear of persecution for those reasons.
Based on all those conclusions, the Tribunal was not satisfied that the Applicant met the criteria for refugee protection.
The Tribunal then turned its attention to whether the Applicant met the complementary protection criteria.
For much the same reasons as given when looking at the refugee criteria, the Tribunal found that there was no real risk of significant harm to the Applicant for any of those reasons.
Ultimately, the Tribunal found that they were not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant been removed from Australia to Uganda, there is a real risk of significant harm.
The Tribunal then made some other observations that have formed the basis of two of the grounds of the substantive application for review.
Ground One
Ground one is set out at follows:
Ground 1: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)
1. The certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth) with regard to folios 46 to 50 and 78, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).”
This ground is based on what the Tribunal said at paragraph 56 of its reasons:
56. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 46 to 50 and folio 78 of the Department file would be contrary to the public interest, because these folios contain information relating to ‘an internal working document and business affairs’. The Federal Court decision of MZAFZ v MIBP [2016] FCA 1081, Beach J, VID461 of 2016, considered a s.438 certificate with similar wording. In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reasons that could form the basis for the basis for a claim to public interest immunity. The Tribunal disclosed the information, and further notes that, in any event, the information in these folios was not relevant to this decision, as it is information relevant to his detention (such as names and addresses, and details of finances and property) and is not of probative value to this review. The Tribunal has not taken account of information in these folios.
This paragraph is quite anomalous. It does not actually make any sense. The information that is in folios 46 to 50 and folio 78 of the departmental file are contained at page 27, page 54 and page 107 of the court book. That information can be described as:-
a)the application for a protection Visa (folio 46);
b)the statutory declaration of the applicant received 8 October 2014 (folio 50);
c)the protection Visa decision record (folio 78).
In paragraph 56, the Tribunal describes this information as “not relevant to this decision as it is information relevant to his detention (such as names and addresses, and details of finances and property)…”. Clearly the actual information in folios 46 to 50 and 78 has nothing to do with the detention of the Applicant nor does it have any details of finances and property.
The Tribunal also said in paragraph 56 that it had “not taken account of information in these folios”, when clearly it had discussed these matters in the course of the very thorough reasons that it had given.
Section 438 of the Migration Act 1958 (Cth) (“the Act”) reads as follows:
438 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
In this case, it would also be very strange for the Department to issue a certificate under s.438 of the Act, certifying that the disclosure of this information “would be contrary to the public interest”.
It seems to me then that not much of what is written in paragraph 56 makes any sense at all.
The argument of the Applicant is that there must have been a certificate or the Tribunal would not have mentioned that such a certificate had been issued. Such a certificate has not been disclosed in the court book and, therefore, the Applicant claims that there has been non-disclosure which is a denial of procedural fairness and constitutes a jurisdictional error.
The argument goes further because folios 46 to 50 and 78 have been identified. The Tribunal said in the last sentence of paragraph 56 that it had not taken account of information in these folios. This would mean that the Tribunal has not taken into account the application, the statutory declaration and the protection Visa decision record. It is mandatory for the Tribunal to take those matters into account and, if it did not take those matters into account, there would be a jurisdictional error.
The Minister relies upon an affidavit of Nader Yeganeh who was the delegate of the Minister who made the original decision not to grant the Applicant a protection Visa. He has affirmed that he reviewed his disclosure decision checklist. He said that, in response to the question “is a relevant certificate of nondisclosure attached?” that he erroneously circled “yes”.
Mr Yeganeh affirms that he did not ever issue a nondisclosure certificate pursuant to s.438 of the Act. Having read paragraph 56 of the Tribunal’s reasons, Mr Yevgeny affirms that he did not issue, nor cause to be issued, such a certificate. He has also reviewed the department file and has affirmed that no such certificate exists.
The situation is unsatisfactory. The Applicant claims that the Minister should have had the Tribunal member swear an affidavit on this issue. I do not accept that this suggested course would have been appropriate; in fact, I am of the view that it would have been very inappropriate for the Minister to attempt such an exercise.
However, paragraph 56 clearly states that “the Tribunal disclosed the information…” which would mean that the Applicant himself would have been in a position to know what material was disclosed to him if paragraph 56 is a true statement of what occurred during the hearing. The Applicant has filed two affidavits in this proceeding but has not chosen to enlighten this Court as to what paragraph 56 is all about.
It seems to me that the only rational conclusion that I could come to, given the state of all of the evidence before me, is that paragraph 56 has been included in the reasons of the Tribunal by error. It should properly be ignored.
The applicant relied upon an authority of SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055. Originally, the Applicant asked for an adjournment because this decision was to be the subject of an appeal to the High Court and special leave had already been given.
Given all of the circumstances of this matter, it was better to proceed with the argument and for me to accept that what is stated in SZMTA (Supra) is the current state of the law and binding upon me. Because the hearing proceeded upon that premise, the application for adjournment was not pressed.
The principles espoused in SZMTA (Supra) are appropriate when one is dealing with a matter involving a s.438 certificate. I have found that there was no such certificate in this case, and that paragraph 56 has been inserted in the reasons by error, there is no need for me to consider those principles.
Therefore ground one fails.
Ground Two
Ground two is set out as follows:
Ground 2: The Tribunal misapplied the relevant law with regard to the real risk of harm from the family of" Asha"
2. There was in an insufficient logical or evidentiary basis for the Tribunal to find from [26] to [27] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [ 46]-[ 49], from the family of "Asha". The Tribunal therefore misapplied, misunderstood or misconceived the relevant law at [26] to [27] of the decision recorded by finding that the essential and significant motivation for the persecution feared is revenge for Asha's death, and not his religion.
The basis for this ground is that the Tribunal have understated the motivation of the family of A to harm the Applicant because of his Christian religion. It is open to interpret the submission of the Applicant to the Tribunal as saying that the motivation was because of his religion and because of the death of A.
The Tribunal came to a conclusion that it was not satisfied that the Applicant had a well-founded fear of persecution from that family because of a convention reason. That was a finding that was well and truly open to the Tribunal. There has been no misapplication of the law as has been submitted.
The Tribunal correctly stated, at paragraph 26, that “…persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared…”. The Tribunal made a finding that the essential and significant motivation for the persecution feared is revenge and not religion.
Having made that factual finding, it was proper to conclude that it was not satisfied of the convention criterion for that issue.
When looking at the complementary protection criteria, the Tribunal was not fettered by needing to consider the reasons for the risk being confined to convention reasons. The findings that were made in paragraphs 46 to 49 were also open to the Tribunal. It is of note that the Tribunal found that in the years while the Applicant lived at the mission, the family of A did not find him, or it seems even look for him.
As this was a finding that was open on the evidence it cannot be said that there was “an insufficient logical basis” for the finding. As it is a finding of “non-satisfaction”, there does not need to be an evidentiary basis for that finding.
Therefore ground two fails.
Ground Three
Ground three is set out at follows:
Ground 3: The real chance of persecution from the LRA
3. There was in an insufficient logical or evidentiary basis for the Tribunal to find at [33] of the decision record that the applicant does riot face a real risk of serious harm under the refugee convention or a real risk of significant harm under the complementary criterion from [43]-[45] from the LRA if the applicant was to return to his home area in the reasonably foreseeable future. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee and complementary criterion at [33] and [ 45] of the decision record.
The reasoning of the Tribunal centred on the country information that indicated that there is little LRA presence in Uganda although they are present in neighbouring countries. As the claim of the Applicant was that he would be targeted by the LRA, the finding that was made by the Tribunal, regarding both the convention and complementary protection criteria, was one that was open to it.
As the argument proceeded before me, it seems to me that Counsel for the Applicant was arguing a totally new ground. This ground was that the Applicant would be recognised as a former LRA soldier and would be harmed by persons in the general population seeking revenge for the atrocities committed by the LRA.
This was not a claim that was actually ever made by the Applicant and certainly it was one that was not considered by the Tribunal. It is trite to say that the Tribunal need only deal with claims that are actually made or that arise naturally from the factual circumstances of the application.
This new claimed does not fit into any of those categories. Because of that, this Court cannot consider such a ground.
As the finding made by the Tribunal was one that was open to it, there is no jurisdictional error and thus, ground three fails.
Ground Four
Ground four is set out as follows:
Ground 4: The real chance of persecution for psychological, social, economic or political factors
4. There was an insufficient logical or evidentiary basis for the Tribunal to find at [38] of the decision record that the applicant does not face a real risk of serious harm under the refugee convention or significant harm under the complementary criterion from [54] on the grounds that the applicant faces a real risk of harm due to psychological, social, economic or political factors, or that the applicant would be able to subsist or that he would not be subjected to persecution, involving systematic and discriminatory conduct by state or non-state agents, after accepting he was a former child soldier for the LRA and he has no family in Uganda. The Tribunal therefore misapplied, misunderstood or misconceived the real chance test under the refugee criterion from [38] and under the complementary criterion at [54] of the decision record by finding that the serious harm test does exclude serious mental harm.
Similarly to the previous two grounds, the Tribunal has considered this aspect from both a convention standpoint as well as a complementary protection standpoint.
From a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal.
At paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal. This ground also fails.
When regard is had to grounds two, three and four, they really are no more than attempts at impermissible merits review.
Ground Five
Ground five is set out as follows:
Ground 5: The referral for Ministerial intervention
5. There was in an insufficient logical or evidentiary basis for the Tribunal to find at [58] of the decision record that the "applicant's particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda" but the "mistreatment does not meet the criteria for the grant of any type of protection visa."
This ground is based on paragraph 58 of the Tribunal’s reasons:
58. The Minister has issued guidelines explaining the circumstances in which he may exercise his public interest powers. The Tribunal notes from the Ministerial guidelines that the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstances. Having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417(1), set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention as there are unique or exceptional circumstances. This is because the applicant’s particular circumstances which provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda, but the mistreatment does not meet the criteria for the grant of any type of protection visa. (my emphasis)
The Applicant contends that it is illogical for the Tribunal to be satisfied that there may be a significant threat to the human rights or human dignity of the Applicant if he returns to Uganda but that such mistreatment would not meet the criteria for the grant of any type of protection Visa. Counsel for the Applicant gave a rather emotional submission that he had never seen a Tribunal make such a recommendation for ministerial intervention before.
But the Tribunal is simply stating the basis for which there could be ministerial intervention. Ministerial intervention proceeds upon a premise that the decision of the delegate or Tribunal is a correct decision and in accordance with all of the provisions of the Act.
The statement made by the Tribunal accords with everything that the Tribunal had earlier said; that is, that the claims of the Applicant do not meet the criteria under the Act for a protection Visa to be issued.
However, this statement is totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed. It is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error.
This ground must also fail.
Extension of Time
As noted earlier, this application was filed 90 days out of time. The Applicant has claimed that he was unaware that there was a deadline for which he was required to file a judicial review application. This seems very unlikely because the notes that are sent with a copy of the decision state very clearly what the deadline is.
The Applicant claims that he was being assisted by the Red Cross who were helping him make a case for ministerial intervention. He said that the Red Cross did not advise him that he should also be applying for judicial review. I do not consider that this is a valid excuse.
The reasons for the delay are but one aspect of the considerations the court must make when deciding whether to grant an extension of time. The prejudice to the respondent must also be considered. The merits of the application are the major consideration and in this case, I have proceeded as if the substantial application was before me.
Given that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, I have come to the conclusion that the application for extension of time in which to file the application should be refused.
Orders
I refuse the application for extension of time to file the application and the amended application and the further amended application. I order that the applicant pay the costs of the Minister fixed in the sum of $7,328.00.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 20 August 2018
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