FQB24 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FQB24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1233   

File number(s):	PEG 277 of 2024
Judgment of:	JUDGE STREET
Date of judgment:	18 November 2024
Catchwords:	MIGRATION – application for constitutional writ – protection visa- no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	43
Date of hearing:	31 October 2024
Place:	Perth
For the Applicant:	The Applicant appeared via video/audio-link
Counsel for the First Respondent:	Ms M Scott
Solicitor for the First Respondent:	Australian Government Solicitor
For the Second Respondent:	The Second Respondent did not appear

ORDERS

PEG 277 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FQB24

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 2 August 2024 is dismissed.

2.The applicant pay the first respondents costs fixed in accordance with the scale in the sum of $8371.30

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 2 August 2024, the applicant commenced proceedings seeking a constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 July 2024 affirming a decision of the delegate not to grant the applicant a protection visa.  

2. The applicant was found to be a citizen of Kenya, who arrived in Australia on 18 November 2014 on a TU 573 high education sector visa.  It was not until 15 April of 2024 that the applicant applied for a protection visa.

3. The applicant claimed to fear harm because his parents were from different tribes, which comes with a lot of stigma, and that his parents were involved in the building and mining industry, and that the family suffered blackmail, extortion, force allegations and threats committed by business competitors.  The applicant claimed the family moved to a gated community, but that the harassment continued, and he was involved in a motorcycle accident fleeing from unknown persons that threatened him.  The applicant alleged his mother was blackmailed and falsely and maliciously charged in 2020, and that he was advised not to return because of the complex situation. The applicant believes he will be victimised, being unlawfully arrested and charged, and that the authorities will not help him.

4. The applicant alleges his multiple forearm operations have greatly changed his life, and that his arm condition has significantly deteriorated since moving overseas.  The applicant alleges he would face economic disempowerment, challenges and limits, including from his compounded trauma and mental toll.  The applicant alleges he took custody of his children in April 2020, but kept it secret from his family and community.  The applicant alleges relocating in Kenya would not be possible and is concerned about ongoing political instability and violence.

   TRIBUNAL’S DECISION

5. On 7 May 2024, a delegate refused the grant of a protection visa.  The applicant applied to the Tribunal for review on 10 May 2024.  On 5 June 2024, the Tribunal asked the applicant to provide witness statements from the applicant's mother and the applicant's mother's lawyer, whom the applicant indicated he would call to give evidence at the hearing.  The applicant provided the tribunal with various material, including a statement from the applicant's mother's lawyer.  On 18 June 2024, the applicant attended, as a result of a hearing invitation, to give evidence and present arguments.  That hearing had to be rescheduled, and a further hearing occurred on 26 June 2024, with the applicant having provided a copy of his mother's statement on 25 June 2024.  The Tribunal attempted to contact the applicant's mother on 26 June 2024 but was unsuccessful.

6. On 3 July 2024, the tribunal affirmed the decision not to grant the applicant a protection visa.  The Tribunal, in its reasons, identified the background to the protection visa application and summarised the applicant's claims.  The Tribunal identified the relevant law, and identified the applicant being of African ethnicity and a Christian and identified the applicant's family.  The Tribunal referred to the applicant's claims concerning his mother being charged with possessing explosives, and his fear of arrest and interrogation if he returns to Kenya.  The Tribunal referred to the documentary evidence in relation to the charges against the applicant's mother.

7. The Tribunal referred to the applicant's evidence disputing whether, in respect of a particular child, he was the biological father, and that he claimed to fear harm and mental anguish from ridicule and questioning regarding the alleged daughter's paternity.  The Tribunal referred to the applicant's multiple surgeries on his forearm, as a result of which his physical capabilities of that arm are impaired.  The Tribunal identified the applicant was able to work as a chef whilst he was in prison.  The Tribunal found the applicant has capacity for gainful employment, even if his strength and ability to engage in physical activities may be somewhat limited.  The Tribunal referred to the submitted medical evidence in relation to the applicant's complaint of pain in his left hand and reduced movement following an assault whilst in detention in 2019.

8. The Tribunal put to the applicant, under s 424AA of the Migration Act 1958 (Cth) (“the Act”), adverse information in relation to a review application in respect of the refusal to grant him a bridging visa, in which the applicant gave evidence that he did not have any grounds upon which to apply for a protection visa. The Tribunal referred to the applicant's fear of harm from harassment and discrimination, and that the applicant was clear that his fear of harm was not in relation to anything that had occurred to him prior to his departure in Kenya, but rather was based entirely on his fear of harm arising out of and relating to his mother's arrest. The Tribunal referred to the applicant's past experiences and claims cumulatively and was not satisfied they would lead to the applicant facing a real chance of serious harm.

9. The Tribunal referred to the medical evidence and that the applicant has a limited range of motion following an assault. The Tribunal referred to what occurred in relation to the applicant's mother's evidence.  The Tribunal referred to the content of the applicant's mother's statement provided on 25 June 2024, and that the mother claimed to have been arrested and held in custody for over two weeks, and she was mistreated very badly.  The Tribunal referred to the mother's assertions of unwarranted searches of homes and strange phone calls, and the refusal of authorities to return her mobile or that of her other son.

10. The Tribunal noted on 26 June 2024, it had attempted to contact the applicant's mother to take evidence from her, and that she did not answer the telephone.  The Tribunal noted the applicant had said that his mother would be available but had also said that he had told her she might not need to give oral evidence.  The Tribunal noted the applicant has not explained why his mother was unavailable.  The Tribunal found the applicant's mother's statement was vague and conclusory and does not refer to any attempts to extort her either during the currency of her charges or following their withdrawal.  The Tribunal was prepared to attach some weight to the applicant's mother's evidence, but it was not prepared to attach significant weight to it because it was vague, conclusory and lacking in detail.

11. The Tribunal identified the similarity with the applicant's mother's statement with the applicant's claims in relation to being vague, undetailed and conclusory in manner.  The Tribunal, identified having to consider whether or not, given the mother's apparent unavailability, a third hearing should be scheduled to attempt to take evidence from the mother. The Tribunal noted that the applicant's statement in relation to her fears concludes, “That is all I wish to state”.

12. The Tribunal also took into account that the applicant indicated that he told his mother that she may not be required for oral evidence.  The Tribunal noted that the applicant has not, as of the date of the decision, contacted the Tribunal after the hearing to explain why his mother was unavailable or whether he still wishes for her to give oral evidence, whether his mother still wishes to give oral evidence, and if so when she might be available.  Taking into account all those matters, the Tribunal exercised its discretion against conducting a further third hearing.  The Tribunal identified, considering the documents provided by the applicant, and in particular the statements relating to the applicant's relationship with his children, that are not of assistance in resolving the applicant's claims for protection.

13. The Tribunal accepted the applicant's mother was arrested on charges relating to possession of explosives and accepted that those charges were brought under legislation that relates to terrorism. The Tribunal also accepted that the applicant's mother is involved in the mining industry, and that the mining industry does have access to explosives.  The Tribunal accepted that the charges were withdrawn on the basis of a lack of evidence.  The Tribunal accepted that the charges against the mother might be re-filed in the future.  The Tribunal identified, given the claims of innocence by the applicant's mother, the prospect of such evidence emerging appears remote.

14. The Tribunal accepted that in June 2020 and December 2020, the applicant's family were interrogated as part of the investigation in relation to his mother.  The Tribunal did not accept that it is plausible such surveillance would continue either in frequency or intensity in regard to the applicant, or the applicant's family and mother more specifically.  The Tribunal found the claimed inhumane interrogation, abuse and excessive force was vague and unconvincing.  The Tribunal referred to the impression that the lack of detail was because the applicant could not provide it.  The Tribunal did not accept that the applicant has been repeatedly harassed by calls from Kenyan authorities.

15. The Tribunal was not satisfied the applicant would be refused a certificate of good character, and even if it was refused, the Tribunal was not satisfied the refusal of a certificate of good character amounts to serious or significant harm.  The Tribunal accepted the applicant's mother's phone has not been returned and referred to country information.  The Tribunal was not satisfied the applicant would be detained while his phone is searched.  The Tribunal was not satisfied, on the evidence before the Tribunal, that the applicant faced a real chance of serious harm or a real risk of significant harm as a failed asylum seeker.  The Tribunal was not satisfied that the applicant's failed asylum claim would increase any chance of risk or serious or significant harm from the Kenyan authorities relating to his mother's prior arrest to a chance that is greater than remote or far-fetched.

16. The Tribunal was not satisfied the applicant's mother was tortured.  The Tribunal was prepared to accept that the applicant's mother was in custody, but was not prepared to accept that she was interrogated and questioned against her will despite protesting her innocence.  The Tribunal was prepared to accept that other family members were questioned.  The Tribunal did not accept that the applicant's extended absence from the state would result in him being charged as an accessory to the crime his mother was accused of.  The Tribunal found that the prospect of the applicant being charged as an accessory is implausible.

17. The Tribunal referred to s5K(a) of the Act, that a person who is pursued because he or she is a relative of a person who is targeted for a reason which is not a reason referred to in s 5J(1)(a) of the Act will not have a well-founded fear of persecution. The Tribunal found that the applicant's mother's fear of persecution is for a reason other than a reason contained in s 5J(1) of the Act, and that s5K(a) of the Act requires that fear to be disregarded. The Tribunal referred to s 5K(b) of the Act, requiring the Tribunal to disregard the fears of the applicant and other family members, because the Tribunal found it is reasonable to conclude that the fears would not exist if the applicant's mother's fears had never existed.

18. The Tribunal found the applicant does not have a well-founded fear of persecution for reason of a membership of a particular social group that consists of his family. The Tribunal found the harm feared by the applicant from the Kenyan authorities is not feared for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion, and found that there is not a real chance that the applicant would be persecuted by the Kenyan authorities for one or more of the reasons in s5J(1)(a) of the Act. The Tribunal found the applicant does not have a well-founded fear of persecution, and found the applicant does not satisfy the definition of a refugee.

19. The Tribunal turned to the issue of complementary protection and was not satisfied there was a real risk the Kenyan authorities would seek to torture the applicant, inflict severe pain or suffering on the applicant, or inflict  pain and suffering that could be reasonably regarded as cruel and inhumane nature. 

20. The Tribunal did not accept that there are substantial grounds for leaving as necessary, and as a foreseeable consequence of the applicant being removed from Australia, the Tribunal did not accept that there is a real risk the applicant will suffer significant harm.

21. The Tribunal was not satisfied the applicant was targeted for harm when he was in a motor vehicle accident.  The Tribunal accepted the applicant's injury will limit his economic activities.  The Tribunal did not, however, accept that the injuries exclude the applicant from all employment. 

22. The Tribunal found that the applicant would be able to financially work in aged care kitchens in the hospitality industry in Kenya, and the Tribunal did not accept the applicant's evidence in that regard.  The Tribunal found it implausible and did not accept that the applicant could not engage in the same type of similar work in Kenya.

23. The Tribunal found that there is an aged care industry in Kenya.  The Tribunal did not accept that the applicant's arm is such that it would prevent him from subsisting in Kenya.

24. The Tribunal was not satisfied the applicant would be unable to obtain employment or that any employment would be insufficient to enable the applicant to subsist.  The Tribunal was not satisfied the applicant would be discriminated against because of his injury. 

25. The Tribunal did not accept that the applicant faces an increased risk of serious or significant harm because his family are, at present, unaware of the injury to his arm.  The Tribunal was not satisfied that the applicant being denied a certificate of good character would exclude him from employment or result in him being unable to subsist.

26. The Tribunal agreed with the applicant that his fear in relation to his arm injury was not a fear within s 5J(1) of the Act.

27. The Tribunal did not accept the applicant faces a real chance of serious harm now and in the reasonably foreseeable future, or that the harm feared by the applicant in respect of his injury is feared for a s 5J(1) of the Act reason, or that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Kenya.

28. The Tribunal referred to the applicant's feared harm arising from the naming of his daughter, who he said was not his biological daughter.  The Tribunal accepted that the child was not the applicant's biological daughter, and that the applicant may be subjected to ridicule.  The Tribunal identified it cannot be certain as to the child's parentage, but we will proceed on the assumption that the child is not the biological daughter.

29. Tribunal did not accept that the ridicule involved the applicant facing a real chance of serious harm, having in regard to the non-exhaustive definitions of serious harm contained in the Act, or involves a real risk of significant harm as exhaustively defined in the Act.

30. The Tribunal was not satisfied with the mental anguish the applicant claims he would suffer as a result, whether alone or in combination with one or more of the other claims, would rise to a level of constituting serious or significant harm.

31. The Tribunal referred to the applicant's claims of past harassment and discrimination.  The Tribunal did not accept that the applicant's claims alone or cumulatively and was not satisfied that the applicant faced a real chance of serious harm or a real risk of serious harm.

32. The Tribunal referred to the applicant's claim of having separated from his family and found that the separation does not constitute significant harm and is not capable of engaging s36(2)(aa) of the Act. The Tribunal referred to the political climate and protests and was not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future if he were to return to Kenya based on recent protests in respect of the finance bill and found any chance of harm to be remote or far-fetched.

33. The Tribunal was not satisfied the applicant met the criterion s36(2)(a) of the Act. Tribunal found the applicant doesn't meet the criterion s36(2)(aa) of the Act. The Tribunal referred to having considered the applicant's claims cumulatively and that the applicant didn't meet the criteria under s 36(2)(a) of the Act or s 36(2)(aa) of the Act and affirmed the decision under review.

    GROUNDS OF REVIEW

34. The grounds in the application are as follows:

    1.The Applicant was denied procedural fairness because the Tribunal did not adequately facilitate the Applicant’s mother to provide oral testimony. The Tribunal requested to hear from the Applicant’s mother following receipt of a written statement. The Tribunal did not provide adequate opportunity for this to occur.

    2.The Tribunal did not correctly apply the test of a ‘real risk of significant harm’ given the country information available

    3.The Tribunal took into account irrelevant considerations regarding the Applicant’s past poor relationship, the parentage of the Applicant’s daughter and the Applicant’s capacity to work.

    FINDINGS AND CONCLUSIONS   

35. The applicant’s oral submissions explained what occurred at the first hearing with his mother and a reference to an opportunity to provide oral or written testimony, and that her lawyer advised her to provide a written statement. The applicant alleges she would have provided further oral information. The Court was taken to the mother’s lawyer’s statement dated 7 May 2024 and the mother’s two page statement dated 25 June 2024. The Tribunal accepted that the charges against the applicant’s mother were withdrawn for lack of evidence and did not accept that the applicant would be charged as an accessory to the alleged crime his mother was accused of, and found the mother’s charges were not because of her race, religion, nationality, membership of a particular social group or political opinion.  

1. For the reasons given below it was open to the Tribunal not to exercise its discretion to hold a third hearing. The applicant referred to country information he provided to the Tribunal. It was a matter for the Tribunal to determine what country information it accepted. The applicant referred to events after the AAT hearing which cannot now be taken into account to establish the applicant’s claims. The Tribunal referred to the applicant’s brother’s attempt to obtain a certificate of good character at paragraph 29, addressed the applicant’s certificate of good conduct at paragraphs 63 and 101 and made adverse findings that were open to the Tribunal. in substance raised the matters addressed in the above grounds, which for the above reasons do not establish any jurisdictional error. The applicant made reference to his alleged daughter and not being required to provide a DNA test. The Tribunal made adverse findings that were open to it dispositive of this claim at 110 to 117. The applicant also referred to the injury to his left arm form an assault on 15 June 2019 and his work as a kitchen hand. The Tribunal expressly addressed the applicant’s injury and capacity to subsist in its adverse findings at paragraphs 96 to 101. In substance the applicant’s oral submissions otherwise reflected a disagreement with the outcome and invite impermissible merits review. Nothing said by the applicant makes out any jurisdictional error.

2. In relation to ground 1, the Court does not accept that the Tribunal did not afford the applicant an opportunity to further call evidence from his mother by holding the second hearing. The Court has taken into account that the applicant may request the Tribunal to call witnesses under s426, that under s426(3) the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence from a person named and that the applicant in his response to the hearing invitation specified and intention to call his mother and her lawyer.  The Tribunal wrote to the applicant on 5 June 2024 acknowledging the applicant’s request and requested witness statements from each witness intended to be called. The applicant provided the mother's statement the day before that the second hearing on 26 June 2024.and the mother was not available when the Tribunal attempted to contact the applicant's mother.  The Tribunal at paragraphs 44-50 gave logical and rational reasons, that have an evident and intelligible justification for not exercising its discretion to hold a third hearing in respect of the unavailability of the applicant’s mother to give evidence at the second hearing. Tribunal provided logical and rational reasons in support of the same, including the limited nature of the statement in its conclusory statement, the content of the statement, and the absence of any step taken by the applicant to explain why his mother wasn't available, or to further seek the calling of evidence from his mother before the Tribunal's decision. That discretionary decision cannot be said to be capricious.

3. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review and in the opportunity given to the applicant to take evidence from his mother.

4. The Tribunal's adverse discretionary decision not to hold a third hearing can't be said to lack an evident and intelligible justification and was not legally unreasonably.  No jurisdictional error is made out by ground 1.

5. In relation to ground 2, the Tribunal correctly identified the relevant law. On the face of the Tribunal's reasons the Tribunal correctly applied the relevant law. It was a matter for the Tribunal to determine what weight should be given to country information and the applicant had the opportunity to put different country information. This ground seeks impermissible merits review.  The Court finds no jurisdictional error is made out by ground 2. 

6. In relation to ground 3, no irrelevant consideration has been identified. To the extent reference is made to the applicant's separation from his family and the daughter’s alleged parentage, they were parts of the claims advanced by the Tribunal, as was the applicant's capacity to work. These were matters raised by the applicant that it was relevant and proper for the Tribunal to address. None of these matters were irrelevant considerations.  No jurisdictional error is made out by ground 3. 

7. As the application fails to make out any jurisdictional error the application is dismissed. The first respondent is entitled to costs fixed in accordance with the scale in the sum of $8371.30.

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

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       18 November 2024