FVB18 v Minister for Home Affairs

[2019] FCCA 2302

FEDERAL CIRCUIT COURT OF AUSTRALIA

FVB18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2302

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicants claiming a fear of harm in Fiji – applicant’s claims disbelieved in significant respects and other fears found not to be well founded – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v Lat (2006) 151 FCR 214

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Prasad v Minister for Immigration (1985) 6 FCR 155

First Applicant: FVB18

Second Applicant: FVK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3115 of 2018

Judgment of: Judge Driver

Hearing date: 21 August 2019

Delivered at: Sydney

Delivered on: 21 August 2019

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms A Wong of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3115 of 2018

FVB18

First Applicant

FVK18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 October 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.

2. Background facts relating to the applicants’ claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions, filed on 14 August 2019. 

3. The applicants arrived in Australia on business (subclass 600) visas.[1]  The first applicant husband (the applicant) travelled to Australia in July 2005 and again in July 2007, and most recently arrived on 25 September 2015.  His wife (the second applicant) arrived in Australia on 15 October 2015.[2]

   [1] Court Book (CB) 120

   [2] CB 120

4. On 15 December 2015, the applicant lodged a protection visa application,[3] setting out his written claims for protection in the visa application form.[4]  The applicant claimed he was an ethnic Fijian from Lautoka who was raised in the Methodist church but joined the Assemblies of God Church in 1996.  He claimed he worked for the Assemblies of God Church from September 2000 and was a well-known pastor in the community and that the military and local police assaulted him on three occasions due to his religion.[5]

   [3] CB 1-37

   [4] CB 31-34

   [5] CB 33

5. The applicant provided the department with copies of his and his wife’s birth certificates,[6] their marriage certificate[7] and passports.[8]

   [6] CB 38-39

   [7] CB 40

   [8] CB 41-56

6. On 31 January 2016, the second applicant lodged a protection visa application[9] and claimed to fear harm due to her religion and because she was a pastor’s wife.[10]  She also claimed she was beaten by the police and the military.[11]  However, she subsequently resiled from these claims before the Tribunal and advanced no protection claims of her own.[12]

   [9] CB 71-95

   [10] CB 90-92

   [11] CB 91

   [12] CB 358-359, [54]

7. The applicants were invited to attend an interview with the delegate,[13] which they both attended.[14]

   [13] CB 106-114

   [14] CB 121-122

8. On 1 April 2016, the delegate refused to grant the applicants protection visas.[15]  The delegate found the applicants’ claims were “generally inconsistent with country information” and that there was no information in the country reports that indicated Pentecostal pastors were targeted by the Fijian authorities.[16] The delegate was not satisfied that the applicants met the criteria in s.5J of the Migration Act 1958 (Cth) or that they faced a real risk of significant harm if they returned to Fiji.[17]

   [15] CB 115-133

   [16] CB 128

   [17] CB 129

The Tribunal’s proceedings

1. On 20 April 2016, the applicants submitted a hand-written review application form by hand to the Tribunal.[18]  On 18 May 2016, they appointed a registered migration agent as their authorised recipient.[19]

   [18] CB 135-141

   [19] CB 150-151

2. On 20 August 2018, the applicants were invited to attend a hearing before the Tribunal scheduled for 17 September 2018.[20]

   [20] CB 161-169

3. On 17 September 2018, the applicants’ representative requested the Tribunal postpone the scheduled hearing as she had been unable to contact the applicants.[21]  The applicants failed to attend the scheduled hearing,[22] but in a further email sent by the applicants’ agent on 17 October 2019, the Tribunal was informed that the applicants mistakenly attended the Commonwealth Courts Building in Queens Square.  The applicants’ agent requested a rescheduled hearing date[23] and the applicants were subsequently invited to a rescheduled hearing for 20 September 2019.[24]

   [21] CB 172-174

   [22] CB 175-177

   [23] CB 178

   [24] CB 183-185

4. At approximately 6:30am on the morning of the rescheduled hearing, the applicants’ agent emailed written submissions to the Tribunal (the submission) that indicated the applicants were no longer pursuing their original claims.[25]  The submission stated that the applicant “did not want to pursue his past claims to have been assaulted for reasons previously stated”, and that he was too afraid to admit that he had been assaulted by the authorities in Fiji due to his past criminal history.  He advanced claims on the basis of his criminal history, past assaults by police and fear of the Fijian authorities.[26]

   [25] CB 191-194

   [26] CB 191

5. The submission attached numerous documents[27] including country information reports and other articles about police brutality in Fiji.

   [27] CB 195-300

6. On 20 September 2018, the applicants and their representative attended the hearing,[28] where the applicants provided copies of their passports.[29]  During the hearing, the applicant claimed for the first time that from 2000 until his departure from Fiji in September 2015, the Fiji police targeted him because of his past criminal record.  He claimed they were “watching” him and would apprehend and interrogate him in an abusive manner, detain him for hours and require him to participate in line-ups which occurred eight times to ten times over the last 15 years.[30]  He also claimed the police would bad-mouth him at this workplace, undermine his reputation as an ordained minister and take him out to the bush for further interrogations.

   [28] CB 301-303

   [29] CB 304-312

   [30] CB 357, [47]

7. On 27 September 2018, the Tribunal wrote to the applicant’s authorised recipient requesting copies of missing documents referred to in the submission.[31]  On the same date, the applicants’ representative responded by email[32] and provided copies of: the applicant’s statutory declaration dated 19 September 2018 (applicant’s statutory declaration) detailing his claims to fear harm due to his criminal history;[33] various medical reports relating to the applicant’s health;[34] and various certificates relating to his religious activities.[35]

   [31] CB 313-317

   [32] CB 318-319

   [33] CB 339-345

   [34] CB 331-337

   [35] CB 320-330

8. In the applicant’s statutory declaration, he claimed that by 1998 the police had charged him with 28 cases most of which he did not do.[36]  The applicant claimed that it had been difficult to live a normal life in Fiji as the police continued to target him.[37]  He claimed to have suffered police brutality while in custody and that after an arrest in 1987 the police assaulted him and broke his jaw.[38]  The applicant also claimed to have diabetes and arthritis and that he could not afford medical treatment in Fiji.[39]  The Tribunal expressly considered the applicant’s statutory declaration in the decision.[40]

   [36] CB 341

   [37] CB 341

   [38] CB 334

   [39] CB 343

   [40] CB 353, 356-357, [25], [40],[42], [47]-[48]

The Tribunal’s decision

1. On 4 October 2018, the Tribunal affirmed the delegate’s decision.[41]

   [41] CB 350-365

2. The Tribunal expressly considered the Tribunal’s “Guidelines on the Assessment of Credibility” in assessing the applicants’ conduct during the hearing and evaluating their evidence as a whole.  The Tribunal found that despite his claimed experience as a pastor and preacher, the applicant did not orally present his protection claims in a logical or comprehensive manner.[42]

   [42] CB 354, [33]

3. The Tribunal had concerns with the applicants’ overall credibility because they presented false claims in their original application and at the Departmental interview.[43]  Whilst the Tribunal accepted the applicant may have been worried that his criminal record would be adverse to his visa application and jeopardise his chances of obtaining permanent residency, the Tribunal found his willingness to present false protection claims based on religion, raised broad questions about his credibility as a whole.[44]

   [43] CB 354, [34]

   [44] CB 355, [35]-[36]

4. The applicants’ conduct added to the Tribunal’s doubts about the truthfulness of their claims and their need for protection.  Specifically, it noted that the applicant left Fiji more than ten months after he was granted the business (subclass 600) visa and the second applicant followed a few weeks later.  It found their purported explanations for their delayed departures lacked supporting evidence and were unpersuasive.  It found their delay in departing Fiji reinforced its concerns about their need for protection.[45]

   [45] CB 355, [37]

Claims of police mistreatment

1. The Tribunal found the applicant’s criminal record had formed the “centrepiece” of his protection claims.[46]  It considered his evidence about his convictions and accepted, on the limited available material, that he had engaged in criminal activities between 1986 and 1999 and spent approximately three years in prison.[47]

   [46] CB 355, [39]

   [47] CB 356, [40]-[41]

2. The Tribunal found it was difficult to make conclusions about his past experiences because his own evidence indicated he had engaged in criminal violence, which suggested he may have incurred injuries in other circumstances.  The Tribunal found further that there was no persuasive evidence linking his broken jaw (or any other injury) to a specific incident or period.[48]  Given its concerns, the Tribunal accepted that the applicant suffered a broken jaw and other injuries before 2000 and that it was plausible he was subjected to some police abuses.  However, given the violent nature of his criminal activities, the Tribunal was unable to determine whether any individual injuries were attributable to police abuses.[49]

   [48] CB 356, [45]

   [49] CB 357, [46]

3. The Tribunal accepted it was plausible, but “far from certain”, that from 2000 the Lautoka police sometimes took the applicant to the police station for questioning of local crimes and had him participate in police line-ups.[50]  The Tribunal was not willing to accept that the police had a sustained adverse interest in him resulting in repeated instances of physical harm and psychological fear.  The Tribunal found: police interest would have been greater in the years immediately following his release from prison; that his return to Fiji from Australia in 2005 and 2006 did not suggest that he had an ongoing fear of persecution or harm in Lautoka in Fiji; and that he continued to live in Lautoka when it did not appear to be absolutely necessary that he did so.[51]  The Tribunal found further that the applicant departed Fiji some ten months after the date of his visa grant, which significantly undermined his claim to fear persecution and significant harm.[52]

   [50] CB 357, [50]

   [51] CB 357, [50]

   [52] CB 357-358, [50]

4. The Tribunal did not accept that the applicant was subjected to ongoing police (or other security force) surveillance, harassment, periodic detention, interrogation, physical abuse or psychological pressure, or that he lived in constant fear of such mistreatment.  It accepted that in the five to ten years after his last conviction and punishment he was sometimes questioned and made to participate in police line-ups at the police station, but did not accept he was taken to secluded locations associated with violent, illegal assaults or that he suffered physical, psychological or other harm after 2000 that, individually or cumulatively constituted persecution or significant harm.[53]

   [53] CB 358, [51]

Claims based on religion

1. The Tribunal considered the applicant’s claims in his original application[54] and, after discussing this with the applicant at the hearing, was satisfied that the applicant had resiled from these claims, and that the second applicant had withdrawn her associated claims and presented no claims of her own.[55]

   [54] CB 358-359, [52]-[53]

   [55] CB 359, [54]

2. The Tribunal summarised the aspects of religion in the applicant’s claims made in oral evidence at the hearing[56] and found that he was “improvising” and “exaggerating” to build a case about his Christian activities as an independent evangelist.  It also found he provided no persuasive country information demonstrating that independent preachers were targeted or harassed.[57]

   [56] CB 359, [56]

   [57] CB 359, [57]

3. Whilst the Tribunal accepted it was “plausible” that the applicant sometimes preached in public spaces and that police or officials may have asked him to move on, it was not satisfied this happened “every time” and found there were many factors that could influence whether a preacher (or street entertainer or other person) was permitted to perform on public or private property (including noise levels and whether gathered crowds impede traffic).  The Tribunal considered the applicant’s claim that Hindus were allowed to conduct their activities but, given its findings about the applicant’s propensity to exaggerate, it did not accept that he experienced discrimination amounting to persecution.[58]

   [58] CB 360, [58]

4. The Tribunal found the applicant: worked as a pastor/ evangelist for the Assemblies of God in Lautoka from 2000 to 2014 and after that time as an individual preacher; had numerous past convictions for crimes committed from 1986 to 1999; spent a total of three years in prison; was subject to some instances of police abuse prior to 2000 including assaults and threats; and suffered a broken jaw and other injuries during this period but the exact cause of the injuries could not be determined.  The Tribunal found there was no evidence that he had engaged in other criminal activity since 2000.[59]

   [59] CB 360- 361, [63]

5. The Tribunal accepted that the applicant experienced some police mistreatment between 1986 and 2000 when he engaged in criminal activities and that the Latouka police sometimes interviewed and briefly detained him, which may have included verbal abuse and man-handling at the police station.  It did not accept this constituted persecution or significant harm and found this occurred mainly in the years immediately following his last conviction and did not occur in secluded locations.[60]

   [60] CB 360-361, [63], [66]

6. The Tribunal did not accept the police or the authorities had prevented the applicant from practising his faith as a pastor or an independent preacher, and although it found he may have been subject to some regulations, it was not satisfied these were discriminatory or caused the applicant to suffer persecution or significant harm.[61]

   [61] CB 360-361, [63]

7. Given his prolonged work in Lautoka as a pastor, his continued stay in Lautoka and his delayed departure from Fiji after obtaining an Australian visa, the Tribunal did not accept the applicant had any genuine or well-founded fear of serious harm from the Lautoka police or other officials at the time of his departure.  It also found the applicants’ further three year stay in Australia further reduced any profile that the applicant had with the Lautoka police or any future interest they may have in him.[62]  The Tribunal found there was no real chance that the police would subject the applicant to serious harm, amounting to persecution, for reasons of his past criminal record if he returned to Fiji.[63]

   [62] CB 361, [66]

   [63] CB 362, [67]

Claims about health and economic prospects

1. The Tribunal considered the applicant’s claimed health issues (diabetes, past pneumonia, a calf/knee injury, bleeding from his mouth) and his post-hearing medical documents but was not satisfied there was any demonstrated causal link between the medical conditions and any specific claims of past abuse.[64]  Whilst accepting the applicant had concerns about the affordability of his medication and future medical needs if he returned to Fiji, it found on the basis of his evidence that such concerns related more generally to the applicants’ overall economic prospects on return to Fiji.[65]

   [64] CB 360, [59]-[60]

   [65] CB 360, [61]

2. The Tribunal accepted that the applicant had multiple health issues and was concerned about the affordability of his medical treatment and the cost of living if he returned to Fiji.[66]  However, the applicants had not claimed and there was nothing to suggest that appropriate treatment was not available in Fiji or that he would be discriminatorily denied such treatment.[67]  On the basis of the evidence at the hearing, the Tribunal understood this claim to be a concern about the applicant’s ability to subsist and to earn an income in Fiji to afford his treatment and the cost of living.[68]

   [66] CB 361, [63]

   [67] CB 362, [70]

   [68] CB 362, [71]

3. The Tribunal found there was minimal information about the applicant’s future likely income in Fiji, possible alternative sources of support (such as family or the church), his likely medical treatment needs or the cost of such medicine or treatment.  On the available evidence, the Tribunal was not satisfied the applicant would have to forgo any medical treatment due to the cost and would therefore be unable to “subsist”.[69] It also found the cost of such treatments and living costs affected all Fijians and reflected general economic conditions. As the affordability of medical treatment and the cost of living in Fiji did not involve systematic and discriminatory conduct and was not for one or more of the s.5J(1)(a) reasons, the Tribunal found that it did not involve persecution.[70]

   [69] CB 362, [72]

   [70] CB 363, [72]

Assessment against the refugee criterion

1. Having considered the applicant’s claims and evidence, individually and cumulatively, the Tribunal found there was no real chance of the police or other Fiji officials inflicting serious harm on him in the foreseeable future for reason of his religion, membership of any particular group, his political opinion or any other s.5J(1) ground.[71]

   [71] CB 363, [75]

2. Pursuant to s.5J(1) and s.5J(1)(c), the Tribunal found the applicant did not face a real chance of persecution in all areas of Fiji and did not have a well-founded fear.[72]  Having also found that the second applicant withdrew her initial claims and had no individual claims,[73] the Tribunal was not satisfied that either of the applicants had a well founded fear of persecution or met the s.36(2)(a) criterion.[74]

   [72] CB 363, [76]

   [73] CB 363, [77]

   [74] CB 363, [78]-[79]

Complementary protection findings

1. The Tribunal found there was no real risk that the police in Lautoka or in Fiji generally would subject the applicant to mistreatment amounting to significant harm.[75]  It also found his claims that he may face restrictions on his Christian practice, ongoing religious discrimination and potential targeting by the Lautoka police or the Fijian authorities lacked substance and did not give rise to a real risk of significant harm.[76]

   [75] CB 364, [82]

   [76] CB 364, [83]

1. The Tribunal was not satisfied on the available evidence that there were substantial grounds for believing the applicant faced a real risk of being unable to earn money or buy medication such that he faced a real risk of significant harm.  It found that such a risk was associated with living standards and the cost of living generally that all Fijians faced and was not satisfied the risk was one that the applicant faced personally, even considering his current medical issues including diabetes.[77]

   [77] CB 364, [84]

The present proceedings

1. These proceedings began with a show cause application filed on 8 November 2018.  The applicants continue to rely upon that application.  The ground in it was expressed in narrative form, but essentially, it takes issue with the reasoning and conclusions drawn by the Tribunal on their claims. 

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 17 January 2019.  Only the Minister filed pre-hearing written submissions in this case. 

3. I invited oral submissions from the applicants.  The first applicant told me that, when he first came to Australia in about 2014, he was granted a visitor visa notwithstanding his criminal record.  I explained to him the difference between being assessed as being of good character and being assessed as being a refugee. 

4. I explained to the applicants that, on my reading of the Tribunal decision, there was no available argument of jurisdictional error by the Tribunal.  The applicants had nothing further to say.  The second applicant confirmed that, while she had originally made protection claims, she ultimately only claimed as a member of her husband’s family group.

5. In my view, the applicants are taking issue with the outcome before the Tribunal and the Tribunal’s reasoning process, but are unable to point to any arguable case of jurisdictional error by the Tribunal.

6. The Minister’s submissions deal with the sole ground of review.  I agree with those submissions. 

7. The applicants appeared at the first court date on 29 November 2018 where orders were made by consent affording them the opportunity to file and serve an amended application and any additional evidence by 14 March 2019 and any written submissions 14 days before the hearing (ie., by 7 August 2019).  Nothing further has been filed and served by the applicants in support of their case.

8. The applicant’s supporting affidavit filed on 8 November 2018, merely confirms his contact details and annexes a copy of the Tribunal’s decision record and notification letter.  Such matters fail meaningfully to advance the applicants’ case.

9. The applicants are unrepresented and their judicial review application contains a single ground of review that contends the Tribunal failed to consider a claim that the applicant made orally at the hearing.  The applicant contends their subsistence in Fiji “was threatened by actions of authorities preventing him from earning money by his religious activities”.  He states he was moved on from his proselytising activities from which he earned an income and his capacity to earn money was adversely affected.  The applicants contend that the authorities’ actions were systematic in nature and that they targeted the applicant because they did not like him given his past.  The applicants contend the Tribunal overlooked these claims in its analysis.[78]

   [78] At CB 362-363, [70]-[72]

10. The applicants have not filed a transcript of the Tribunal hearing to support their contention that the applicant expressly claimed orally at the hearing that his ability to subsist or to earn an income from undertaking proselytising and other religious activities would be affected by the police or the authorities moving him on.  The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.[79]

    [79] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [61]

11. Even if a Court was minded to accept that such a claim could be said to clearly arise on the materials, the Tribunal’s reasons[80] when read as a whole, sufficiently address that claim, even if it was not expressly mentioned.[81]  Relevantly, the Tribunal did not accept that the police or the authorities had prevented the applicant from practising his faith as a pastor or an independent preacher and found that although he may have been subjected to regulations, it was not satisfied that these were discriminatory.[82]

    [80] At CB 359-362, [56]-[58], [63],[68])

    [81] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]

    [82] CB 361, [63]

12. In relation to his claim that the police used their powers to cut him off, harass and restrict him from preaching in public spaces, the Tribunal did not entirely accept this claim.  It gave reasons for finding that the applicant was “improvising” and “exaggerating” his evidence to build a case that his Christian and evangelist activities were subject to restrictions.  In support of these findings, the Tribunal noted that: he presented few details and no supporting evidence (such as photos or witness statements) to show that his most recent religious practices in Fiji involved preaching in public places and provided no persuasive country information that indicated independent preachers were targeted or harassed.[83]

    [83] CB 359, [56]-[57]

13. Whilst the Tribunal accepted it was “plausible” that the applicant “sometimes” preached in public places and that on some occasions the police may have asked him to move, it could not be satisfied, on the limited available evidence, that this happened “every time”.[84]  The Tribunal was not satisfied that the police or other officials targeted the applicant and effectively denied him his religious rights.  Given its credibility concerns, it also did not accept that he experienced discrimination amounting to persecution for his Christian religion or associated political opinion.[85]

    [84] CB 359, [58]

    [85] CB 360, [58]

14. The Tribunal also found that there was a lack of persuasive country information to indicate that the Assemblies of God, evangelical groups or individuals faced discrimination or restrictions involving serious harm.  The Tribunal not satisfied the applicant would face a real chance of being denied the opportunity to practice his faith as a Christian, and noted country information indicated past restrictions imposed on Christian groups for political reasons were now negligible.  For these reasons, the Tribunal could not be satisfied the applicant faced serious harm arising from any restrictions on his religious practice or any (perceived) discrimination against Christians.[86]

    [86] CB 362, [68]

15. The Tribunal was not required to accept uncritically all the allegations made by the applicants at the hearing.[87]  The applicants were required to provide their evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction.[88]  The Tribunal plainly addressed the applicant’s complaints that he was prevented from undertaking proselytising and other religious activities by the authorities by rejecting that he was moved on “every time”, that he was denied his religious rights or experienced discrimination.  The applicant’s complaint that he was prevented from subsisting or earning an income by way of proselytising was subsumed in these findings of greater generality.[89]  The sole ground fails to establish an arguable case of jurisdictional error on the part of the Tribunal and cannot succeed.

    [87] Minister for Immigration v Guo (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration (1992) 38 FCR 191; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170

    [88] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]

    [89] Applicant WAEE

Conclusion

1. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court rules.  The applicants did not wish to be heard on costs. 

3. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:     22 August 2019