GBS18 v Minister for Home Affairs

[2019] FCCA 850

FEDERAL CIRCUIT COURT OF AUSTRALIA

GBS18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 850

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error identified – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss. 36, 426, 476

Applicant: GBS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3260 of 2018

Judgment of: Judge Street

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Sydney

Delivered on: 3 April 2019

REPRESENTATION

Counsel for the Applicant: Ms U Okereke-Fisher

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely upon the amended application in the form annexed to the submissions filed 21 March 2019 and the Court directs that the amended application in that form be filed electronically on or before 5 April 2019.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 3 APRIL 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3260 of 2018

GBS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 November 2018 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived in Australia on 25 October 2012 and then departed on 18 November 2012.  The applicant arrived in Australia on 30 January 2016 and applied for the protection visa on 13 March 2016. 

3. The applicant claimed to have been running his own currency exchange business in Baghdad since 2014 and contended that the militias were greedy and continued to ask for money, which had to be paid. The applicant alleged an incident occurred involving an armed robbery in 2015 where three Iraqi soldiers at the checkpoint were killed. One of those soldiers was a Sunni, and the applicant started paying that family’s monthly wages as they were very poor. The applicant alleged that on 25 January 2016 three militiamen came to his shop to question him about the money he was paying to the Sunni person’s family, that they were offended, and told him that as a Shi’a he should only be concerned about Shi’as and not Sunnis. The applicant alleged that he was told that he had betrayed his people and had converted to become a Sunni. The applicant alleged that the militiamen hinted they would kill his family. The applicant alleged an incident occurred when he was going home and that he escaped and that he was afraid of the armed militias and government forces because they were blackmailing him all those years and that he lived under continuous threats. 

4. The applicant in his statutory declaration at page 37 of the Court Book referred to one way of protecting his business was to pay militias who dominated the area and that the applicant paid the police and the soldiers who are deployed at the checkpoints in the area, and that it was crucial for the applicant to secure that they were on his side. The applicant contended that the militias on the other hand were demanding money in order to effectively protect the applicant. The applicant contended this was masked bribery and legalised ransoms and stated that they could not be opposed as the business needed the protection. 

5. On 29 August 2016, a delegate found the applicant failed to meet the criteria to grant a protection visa. The applicant applied for review on 5 September 2016. The applicant was invited by letter dated 26 September 2018 to attend a hearing on 15 October 2018.  The applicant appeared on that date to give evidence and present arguments.

6. Prior to the hearing the applicant completed a response to hearing invitation. In “Part 3 – Witnesses” the response, identified:

   You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.

7. Relevantly, the applicant ticked the box for a request for the member to take oral evidence from another person, and attached a list of three persons, two being described as brothers and the third being described as a brother-in-law, with telephone numbers. 

8. The Tribunal in its reasons identified that at the commencement of the hearing it referred to the three telephone-contactable witnesses and specifically asked the applicant what evidence he wanted them to give.  The Tribunal referred to the applicant asserting that they knew everything about him and his story. The Tribunal raised with the applicant that if they were all going to say the one thing there was not much point in calling all three. The Tribunal noted that the applicant contended that it was up to the Tribunal and it was in that context that the Tribunal identified that a decision on who would be called would be made later.

9. It is apparent from the Tribunal’s reasons at paragraph 42 that in the course of the hearing, the Tribunal re-agitated the issue as to whether the applicant wished to call witnesses and the applicant repeated that it was up to the Tribunal. The Tribunal noted that it was up to the applicant and the applicant was again advised that it was up to him to request the witness to be called. It was in that context that the Tribunal noted that the applicant then asked that there be called a particular nominated brother or another brother, both of whom were identified in Iraq. The Tribunal identified having called the first brother and summarised the evidence given by that first brother. 

10. The Tribunal in its reasons identified the background to the application for review, set out the relevant law and summarised the applicant’s claims and evidence. The Tribunal also referred to the accounts in relation to the business that the applicant claimed he had been running and had been the subject of extortion and then sale. The Tribunal also referred to post-hearing submissions. 

11. The Tribunal expressly referred to the applicant’s claim that he would be killed by Shia Islamic groups because he had provided financial assistance to the family of a Sunni soldier killed in a militia attack. In that context, the Tribunal referred to the applicant asserting he had no other claims. It is apparent from the Tribunal’s reasons that the Tribunal considered the whole of the applicant’s claims.

12. The Tribunal found the applicant’s evidence regarding the killed Sunni soldier to be inconsistent, and at times implausible, and to lack credibility. The Tribunal did not find the applicant to be a reliable, credible or truthful witness and felt that the applicant had fabricated much of his claim in order to be granted a protection visa. 

13. The Tribunal was not satisfied that there was an attack against a military checkpoint in June 2015 in which Shia militia got into an argument with the checkpoint, and then began firing and killed two Shias and one Sunni soldier. The Tribunal referred to the general security situation, and the militia in Iraq and where the applicant lived. The Tribunal in that regard identified an inconsistency in what the applicant said in his protection visa in respect of being “afraid from the armed militias and the governmental forces because they were blackmailing us all those years and we have lived under continuous threats.”

14. The Tribunal found the alleged timing of the attack of the militia on him to lack credibility. The Tribunal took into account that the applicant had never had problems with the militia for giving money since he began doing so, and he was allegedly visited by persons in uniforms on 21 January 2016 and followed by a car before he arrived in Australia.

15. The Tribunal found the description of the events implausible. The Tribunal referred to the alleged incident in respect of persons attending or visiting him in his shop and found it implausible that the alleged persons would have followed the applicant and then try and assassinate him by firing at a moving car behind it while being in a moving car from the source.

16. The Tribunal referred to country information. The Tribunal did not accept the attack against the military checkpoint occurred, and did not accept the applicant began paying the family of one of the dead Sunni soldiers, or that the Shia militia found out about it and visited him in his shop to make him stop doing so, or that they turned up at a funeral and asked about his whereabouts or that he would be of any interest to the Shia militia. 

17. The Tribunal referred to an alleged police report being a record of a statement from the applicant’s brother. The Tribunal referred to having taken into account the corroborative evidence given by the brother during the phone interview from Iraq, but gave it little weight given the close family relationship and found there was little independent evidence to support the claim in respect of the funeral. 

18. The Tribunal referred to taking into account the country information provided by the applicant. The Tribunal found on the basis of the lack of the applicant’s credibility, that the events described by the applicant did not occur. The Tribunal found there is not any continuing interest in the applicant on the part of militias. 

19. The Tribunal was not satisfied the applicant had been truthful regarding his financial situation which impacted upon the applicant’s credibility as a witness. The Tribunal referred to particular bank accounts, and the transfer of money and the pre-hearing request to provide copies of his bank statements purportedly from particular banks. Other than what was identified by the Tribunal, the Tribunal found no other documents were provided. 

20. The Tribunal identified inconsistencies in the evidence given by the applicant, as well as what his brother had said in respect of a number of accounts and the absence of debts.  The Tribunal found that there was no record the applicant ever had a sum of a particular amount that he claimed to possess. The Tribunal did not accept as credible that the applicant sold his business for a particular amount to partially pay off a loan to his brothers if he had the alleged amount in the bank. The Tribunal expressly referred to the applicant’s statutory declaration in relation to payment of debts but gave it little weight as it failed to address the inconsistency in terms of the alleged very large amounts the applicant asserted that he had. 

21. The Tribunal made express reference to the brother having been telephoned as a witness from Baghdad and confirmed that he had power of attorney over the applicant’s accounts, and referred to the particular accounts and that he had not closed down any for the applicant. The Tribunal in those circumstances, found there were inconsistencies that were put to the applicant and did not accept the applicant’s responses as a satisfactory explanation. 

22. The Tribunal also found that there had been no mention at all of a particular bank account or another account by the brother.  The Tribunal found that it would be reasonable, if the brother had been granted power of attorney, that he would have knowledge of the accounts, particularly if he was to close them down.  The Tribunal did not accept the alleged misunderstanding by the brother in respect of the questions put to him and found that there were no interpreting difficulties.

23. The Tribunal made express reference to having taken into account the bank account documents provided and the assertion that a particular account had been closed and the accounts withdrawn but gave them little weight. 

24. The Tribunal also identified the inconsistency between the production of a statement of an account that allegedly had been closed and the brother having failed to mention that it had been closed. The Tribunal also did not accept that there had been no mention of a particular bank account because it was operated by the other brother and not the one who was telephoned.  The Tribunal found that there would have been no cause for the particular brother who was telephoned to close down the account. The Tribunal found because of the applicant’s lack of credibility, the Tribunal was not satisfied that the applicant paid protection money to the police, army and Shia militias or that he was accused of converting to the Sunni branch of Islam by Shias.

25. The Tribunal made reference to having regard to all the evidence and the applicant’s claims singularly and cumulatively, and the Tribunal found the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future. 

26. The Tribunal then turned to the issue of complementary protection and noted that it had not accepted that the applicant ever paid protection money to the Iraqi police, army or Shia militias, that there was an attack on a military checkpoint near his shop, that he subsequently paid money to the family of one of the dead soldiers, that the Shia militias found out, warned him off, tried to kill him and are continuing to look for him. 

27. The Tribunal found that it was not satisfied there are any substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant would suffer significant harm. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act and s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The Tribunal failed to exercise jurisdiction in that it failed to consider in substance, an integer of the Applicant’s claims that the militias extorted money from him. Furthermore, the Tribunal failed to consider whether (i) the Applicant was subjected to extortion by the militias for convention reason and if so, whether such extortion by itself could constitute persecution; and (ii) there was a real chance that the Appellant would suffer persecution from extortion/convention reason if he returned to Iraq.

   Particulars

   a) The Applicant claimed that the militias demanded money from them for protection. He described the extortion as “masked bribery and legalised ransoms”. [the “Extortion Claim”] [Paragraph 3, CB 37]

   b) The Tribunal stated “the Applicant claimed that if he returned to Iraq he would be killed by the militia (Saraya, Salam, Hizbullah, Asaib al-Haqq) because he had helped someone. He had no other claims” [Paragraph 21, CB 443]

   c) Also, the Tribunal stated “the Applicant claimed that if he returned to Iraq he would be killed by Shi’a Islamic groups because he had provided financial assistance to the family of a Sunni Soldier killed in a militia attack. He had no other claims” [Paragraph 50, CB 447]

   d) The Tribunal concluded “Because of the Applicant’s lack of credibility, I am also not satisfied that he paid protection money to the police, army and Shi’a militias” [Paragraph 72, CB 450]

   2. The Tribunal dismissed the Extortion Claim (without consideration) based on adverse findings of fact founded upon credibility, where the adverse findings as to credibility were founded simply upon an assessment as to whether the applicant is to be believed or disbelieved, thereby exposing jurisdictional error. Particulars

   a) The Applicant claimed that the militias demanded money from them for protection. He described the extortion as “masked bribery and legalised ransoms”. [Para 3, CB 37]. The Applicant further claimed that he was afraid of the armed militias and the governmental forces because they were blackmailing us all those years and we have lived under continuous threats. [Paragraph 55, CB 448]. (“Extortion Claim”).

   b) The Tribunal concluded “Because of the Applicant’s lack of credibility, I am also not satisfied that he paid protection money to the police, army and Shi’a militias” [Paragraph 72, CB 450]

   3. The Tribunal failed to have regard to the applicant’s request, failed to take into account relevance and potential importance of the evidence that could be given by the nominated witnesses to the outcome of the review and ultimately declined to comply with the applicant’s wishes. The Tribunal’s refusal to take evidence from the applicant’s nominated witnesses undermined the Applicant’s participation in the proceeding and was unreasonable leading to a decision that was plainly unjust and lacking an evident and intelligent justification.

   Particulars

   a) Part 3 of the Response to hearing invitation document states “You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate”. [CB 218] [the “Undertaking”)

   b) In response to the Tribunal’s hearing invitation, the Applicant’s representative attached a list of nominated witnesses pursuant to the Tribunal’s Undertaking and for the purpose of s 426(2) [CB 217 – 220].

   c) In the course of the AAT hearing, the Tribunal (i) asked the Applicant what evidence the witnesses would give – the Applicant explained that the witnesses knew everything about him and his story (ii) advised “… if they were all just going to say the one thing there wasn’t much point in calling all three”. [Paragraph 14, CB 442]. Subsequently, the Tribunal stated, “…if it was only up to the Tribunal it would not be seeking to speak to the witnesses”. Ultimately the Tribunal took evidence from one out of the three witnesses. [Paragraph 42, CB 446] (Tribunal’s Approach).

Ground 1

1. In relation to ground 1, Ms Okereke-Fisher of counsel for the applicant submitted that the Tribunal had failed to consider an integer of the applicant’s claim that the militias extorted money from him. Ms Okereke-Fisher referred to the Tribunal’s reasons, relevantly at paragraph 21, in which there was a reference to the applicant having no other claims. It is apparent from the Tribunal’s reasons that that is a reference to what was asserted by the applicant and is not to be read as suggesting that the Tribunal did not have regard to the applicant’s other claims that were advanced in respect of his fears because of alleged bribery or extortion. 

2. The Tribunal’s reasons as summarised above, are inconsistent with having confined itself to the proposition that he will be killed by the persons identified in the first sentence of paragraph 21. It is apparent from the Tribunal’s reasons as summarised above, that the Tribunal made adverse findings dispositive of the whole of the applicant’s claims as relevantly identified in paragraphs 72 and 74 of the Tribunal’s reasons summarised above. There was no failure by the Tribunal to consider an integer of the applicant’s claims in respect of extortion. The Tribunal made adverse credibility findings on the applicant’s as to extortion. The Tribunal’s reasons were dispositive of the whole of the applicant’s claims. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Ms Okereke-Fisher submitted that the adverse findings in relation to the applicant’s credibility in disbelieving the applicant in respect of the extortion were legally unreasonable. The Tribunal provided logical and rational reasons in support of the adverse credibility findings as summarised above. They were not adverse credibility findings based on a generic lack of credibility by the applicant, but rather reflected a reasoned analysis which was logical and rational in respect of the applicant’s claims concerning extortion in the shop that he had operated, including the accounts in respect of which the alleged bribery and extortion claim was advanced, as well as identifying implausibilities that were also logical and rational and also omissions in respect of particular bank accounts and the inconsistency in respect of the closure of an alleged bank account. 

1. The adverse credibility finding by the Tribunal was open for the reasons given by the Tribunal as summarised above. Ms Okereke-Fisher took the Court to authorities in respect of the need for logical reasons in respect of rejecting an extortion claim. The Tribunal’s reasons as summarised above, cannot be said to lack an evident and intelligible justification.  The Tribunal’s reasons were logical and open on the material before the Tribunal. No legal unreasonableness as alleged in ground 2 is made out.  Accordingly, no jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Ms Okereke-Fisher submitted that there had been a failure by the Tribunal to give real and meaningful consideration in accordance with the requirements of s 426(3) of the Act to the request of the applicant to call witnesses. It is apparent from the Tribunal’s reasons, as summarised above that the applicant did not press the Tribunal to call the three witnesses the subject of the response to hearing invitation, and that the Tribunal gave real and genuine consideration to the request and explored with the applicant the nature of the evidence that they may adduce and in fact, revisited the matter with the applicant, and that the applicant identified he wished one brother to be called. 

2. This is a case where there were post-hearing submissions and no submission was advanced suggesting that further evidence should have been called from any of the other two witnesses. Further, it is apparent from the Tribunal’s reasons that the Tribunal took into account the brother’s evidence, identifying implausibilities and inconsistencies as a result of the same, and gave reasons for placing little weight on the witness who could not be said to be independent. On the face of the Tribunal’s reasons, the Tribunal gave a real and meaningful consideration to the request to call the witnesses. It is incorrect to suggest that the Tribunal refused to call the witnesses. It is apparent that the Tribunal explored the issue with the applicant and the applicant only pressed for one witness to be called, and that witness was called by the Tribunal.  No jurisdictional error as alleged in ground 3 is made out. 

3. As the amended application fails to make out any jurisdictional error, accordingly the amended application is dismissed. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 May 2019