GGV18 v Minister for Home Affairs
[2019] FCCA 593
•2 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GGV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 593 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Fiji – applicant disbelieved in part and other fears found not to be well-founded – whether the Tribunal asked itself the wrong question, misunderstood evidence or took into account an irrelevant consideration or whether the Tribunal applied the wrong test considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 438 |
| Cases cited: BAO16 v Minister for Immigration [2018] FCA 1463 |
| Applicant: | GGV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3358 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr V Kline, pro bono publico |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
ORDERS
The application as amended on 4 February 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3358 of 2018
| GGV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 November 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Fiji, applied for protection visa on 30 November 2015. On 1 February 2016, the delegate refused to grant the visa.[1] The applicant applied to the Tribunal to review that decision on 19 February 2016.[2] She was invited to a hearing, which she attended on 14 September 2018 with her representative.[3]
[1] Court Book (CB) 110-117
[2] CB 118-124
[3] CB 173
Applicant’s claims
The applicant’s claims can be summarised as follows:[4]
a)the applicant was employed by Mereseini Rakuita Vuniwaqa who was the previous owner of MRV Legal Consultancy and was then a Minister of the Government of Fiji;
b)Ms Vuniwaqa’s husband held the position of Director of Immigration in Fiji;
c)while employed by Ms Vuniwaqa, the applicant prepared documentation for land transactions which were unlawful. The applicant feared harm if these transactions came to light. The applicant was under surveillance because of this work; and
d)the applicant had contrary political briefs to the current government and feared harm on that basis.
[4] CB 79–81, 111-112 and 139-141
Tribunal decision
The Tribunal set out the documentary and oral evidence before it.[5] The Tribunal recorded that a certificate had been issued over documents provided to the Minister’s Department by NSW Police pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal found that the s.438 certificate did not appear to be valid and disclosed the information to the applicant on the basis that it might be relevant to the issue of her credit.[6] The Tribunal characterised the information as an email from NSW Police to the Minister’s Department relating to criminal charges from August 2017 against the applicant. The applicant acknowledged those charges and advised that she had served a good behaviour bond for them. She confirmed that her bridging visa was cancelled, a decision which the applicant appealed.[7]
[5] [11]–[30]
[6] [19]
[7] [19]
The Tribunal expressed concerns regarding the applicant’s claim to be employed at MRV Legal Consultancy, but giving the applicant the benefit of the doubt ultimately proceeded to consider her claims on the basis that she worked at MRV Legal Consultancy as claimed.[8]
[8] [40]
The Tribunal also accepted the applicant’s claim that Ms Vuniwaqa was the previous owner of MRV Legal Consultancy and was then a Minister of the Government and that her husband held the position of Director of Immigration.[9] However, the Tribunal did not accept the applicant’s claims regarding the nature of the work that she performed for MRV Legal Consultancy on the basis that her evidence was “vague and lacking in convincing detail”.[10]
[9] [41]
[10] [42]
The Tribunal also did not accept that the applicant had information or knowledge as a result of her work which would bring her to the adverse attention of the authorities, including her former employer or the employer’s husband. It did not accept that the applicant would be blamed as a scapegoat for unlawful land transactions nor that she was monitored or under surveillance in the past, or would be in the future.[11]
[11] [42]
The Tribunal accepted that the applicant had different political opinions to the government. However, it noted that she did not claim to fear harm for her political opinions, nor did she claim to have been involved in a political party or organisation in Fiji.[12] As such, while the Tribunal acknowledged country information that some high profile public figures who challenged the authorities might be at risk of negative attention, the Tribunal did not consider the applicant to fall into that category.[13]
[12] [43]
[13] [44]
The Tribunal concluded that the applicant was not owed protection obligations under s.36(2)(a).[14]
[14] [46]
Having rejected the applicant’s claims to fear harm and given its findings about her political profile, the Tribunal was not satisfied that the applicant was owed protection obligations pursuant to s.36(2)(aa).[15]
[15] [48]-[49]
The current proceedings
These proceedings began with a show cause application filed on 3 December 2018. The applicant now relies upon an amended application filed on 4 February 2019. There are two grounds in that application:
1. The Second Respondent asked itself the wrong question, displayed a critical misunderstanding of the evidence (Minister for Immigration and Citizenship v SZRKT [(2014)] 212 FCR 99, per Robertson J), and took into account an irrelevant consideration, and thus fell into jurisdictional error.
PARTICULARS
(i) The Applicant claimed a well-founded fear of persecution from Fijian government members in relation to her knowledge that those members had engaged in corrupt land deals carried out by a certain law firm with which the government members were associated, and where the Applicant worked.
(ii)The Second Respondent acknowledged that the Applicant worked for that firm but said that she would not have a well-founded fear of persecution because of “the absence of any other substantiating material to support knowledge she has of specific matters” [42].
(iii) First of all, the Second Respondent thus displayed a critical misunderstanding of the evidence by ignoring the evidence of a solicitor from the firm who resigned from the firm on grounds of “moral beliefs which may have contradicted certain transactions that he became involved in along with the Applicant. (italics added)” [15]
(iv) But in any event, the Second Respondent asked itself the wrong question and took into account an irrelevant consideration, by finding that a well-founded fear of persecution could only arise if the Applicant had specific knowledge of specific corrupt dealings, when a general knowledge of those corrupt dealings, which the Applicant had, would be enough for a real chance of persecution to arise from the aforementioned corrupt government officials.
2. The Second Respondent departed from the language of s 5 of the Migration Act 1958 (Cth) (the Act) by finding that it ''is not satisfied that there is a real risk she will face serious harm for reasons of political opinion'' (italics added). [45] Given that it is imperative that decision-makers dealing with claims of persecution use the same language as employed in the Act, in this case that there is a real chance of persecution, lest a question arises whether they are applying the wrong test, the Second Respondent, in failing to use the correct language fell into jurisdictional error. (SZQOT v Minister for Immigration and Citizenship (2011) 258 FLR 251, per Judge Driver, and BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463, per Kenny J.
The only evidence I have before me is the court book filed on 14 January 2019.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial.
At the outset of the trial, I dispensed with the need for a show cause hearing and the hearing proceeded as a final hearing.
Consideration
I prefer the Minister’s submissions concerning the grounds of review advanced. While the asserted errors are couched in legal terminology, the applicant’s real complaint is that, on the weight of the material before it, the Tribunal should have been satisfied that the work undertaken by the applicant concerning dubious land transactions gave her a risk profile that amounted to a real chance of serious harm in Fiji. In oral argument, I was taken to the document reproduced at CB 139, in particular at [6]-[12] as examples of the evidence presented to the Tribunal that the applicant considers should have been accepted as establishing a real chance or real risk of serious or significant harm. In my view, given the somewhat vague and general terms in which the applicant’s claims were put to the Tribunal, it was open to the Tribunal, on the material before it, not to be satisfied that the criteria for a protection visa were met.
I now turn to consider the grounds of review advanced.
Ground 1
By Ground 1 the applicant contends that:
The Second Respondent asked itself the wrong question, displayed a critical misunderstanding of the evidence (Minister for Immigration and Citizenship v SZRKT [(2014)] 212 FCR 99, per Robertson J), and took into account an irrelevant consideration and thus fell into jurisdictional error.
The particulars to this ground take issue with the Tribunal’s finding that the applicant will not face a real chance of persecution on the basis of her work with MRV Legal Consultancy. The applicant asserts three errors:
a)the Tribunal’s finding the applicant’s knowledge of land transactions would not put her at risk was contradicted by evidence from Ms Duaibe, purportedly a former colleague of the applicant at MRV Legal Consultancy, and this demonstrates a failure to address this evidence and/or proceeding on a misunderstanding of it;
b)the Tribunal erroneously assumed the applicant was only a threat to corrupt officials if her knowledge of the fraudulent transactions was detailed; and
c)the Tribunal misunderstood the applicant’s claim as she feared harm from those who wish to prevent the fraudulent transactions being revealed.
In regards to (a), first, Ms Duaibe did not provide evidence regarding the applicant’s work activities, only that the applicant was employed around the same time she was employed.[16] The Tribunal observed at [40] that Ms Duaibe’s evidence was inconsistent with the applicant’s evidence to the delegate and that the applicant commenced employment at MRV Consultancy Legal after Ms Duaibe’s resignation. Nor does Ms Duaibe’s evidence indicate the applicant was at risk of harm. Rather, her evidence was that Ms Duaibe was in a precarious position as “there is no protection for whistle blowing” and the applicant should tell her own story.[17] As such Ms Duaibe’s evidence cannot be said to directly contradict the Tribunal’s finding and there is nothing in the decision which indicates the Tribunal misunderstood this evidence.
[16] CB 167
[17] CB 167
Secondly, while the Tribunal accepted the applicant worked at MRV Consultancy Legal, it did not accept “the applicant’s claims about the nature of the work undertaken at the firm and risk of harm to her on this basis”.[18] As such, read fairly, the Tribunal did not accept that the firm undertook fraudulent land transactions. The Tribunal further did not accept that the applicant undertook work that would bring her to the adverse attention of the authorities or her employer.[19] This finding was on the basis of the applicant’s vague evidence and the absence of substantiating material.
[18] [42]
[19] [42]
Turning to (b), this contention rests on a misunderstanding of the Tribunal’s reasons. The Tribunal did not accept that the applicant would only be a threat if she had detailed knowledge of the fraudulent conduct. Rather it found that it did not accept that the applicant had any information or knowledge that would bring her to adverse attention from the authorities or her employer.[20] The Tribunal did not proceed on a flawed assumption as claimed.
[20] [42]
Lastly, regarding (c), the Tribunal did not solely find the applicant would not face harm as a scapegoat. It also did not accept that “she has information or knowledge from her work there which would bring her to the adverse attention to the authorities, or her former employer Mrs or Mr Vuniwaqa”. The Tribunal disposed of the applicant’s claim to fear harm from her employer. In any event, the applicant did claim that she would be blamed for the illegal contracts.[21] That claim was addressed by the Tribunal and disposed of.
[21] CB 112
The Tribunal’s findings above were based on an analysis of the evidence before it and the conclusions drawn from that evidence were open to it. While reasonable minds may come to different conclusions, this does not reveal an error in the Tribunal’s findings.[22]
[22] Minister for Immigration v SZRKT (2013) 212 FCR 99 at 137 [148]
Ground 2
Ground 2 contends that:
The Second Respondent departed from the language of s 5 of the Migration Act 1958 (Cth) (the Act) by finding that it “is not satisfied that there is a real risk she will face serious harm for reasons of political opinion” (italics added). [45] Given that it is imperative that decision-makers dealing with claims of persecution use the same language as employed in the Act, in this case that there is a real chance of persecution, lest a question arises whether they are applying the wrong test, the Second Respondent, in failing to use the correct language fell into jurisdictional error. (SZQOT v Minister for Immigration and Citizenship (2011) 258 FLR 251, per Judge Driver, and BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463 per Kenny J.
As acknowledged by the applicant at [20] of her submissions, in Minister for Immigration v SZQRB[23] the Full Federal Court accepted that the test for “real chance of serious harm” was the same as for “real risk of significant harm”. As such the Tribunal’s finding at [45] does not reveal error.[24]
[23] [2013] FCAFC 33 at [246]
[24] Cf SZQOT v Minister for Immigration (2011) 258 FLR 251 which concerned a test in s.91R(2) where, it was said, it could be inferred a different test was intended by Parliament. No such intention can be inferred here given the Full Federal Court’s finding in SZQRB
In regards to the other deficiencies of reasoning said to arise, these can be addressed as follows. First, it is not clear how the applicant’s employment with the office of Prime Minister or her tertiary education relate to the applicant’s claims to fear harm or to what deficiency in reasoning failing to consider them would lead. In any event, the Tribunal referred to these factors at [11] and therefore cannot be said to have ignored these factual matters.[25]
[25] WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
Secondly, it is not apparent how an error is revealed by the Tribunal accepting the applicant worked at MRC Legal Consultancy despite its concerns regarding this claim. This finding was to the benefit of the applicant and does not show “confusion” but a willingness to accept claims despite its concerns. To the extent the applicant contends this finding indicates an apprehension of bias, this is no more than a bare assertion which, particularly in circumstances where the Tribunal accepted this claim, is not made out on the material.
Lastly, contrary to the applicant’s submissions, the Tribunal did not dismiss the applicant’s claim to fear harm solely on the basis that she was not a member of a political party. The Tribunal had regard to the fact the applicant had not suffered harm for her political opinion in Fiji in the past and country information which indicated “high profile figures including leaders of organisations” are at risk.[26] The asserted “confusion and naivety of thinking” rests on a misunderstanding of the Tribunal’s finding.
[26] [43]-[44]
In circumstances where the test applied by the Tribunal was of an equivalent standard and no other errors are revealed[27] I accept that, read fairly and as a whole, the Tribunal can be taken to have applied the correct test. In those circumstances Ground 2 does not make out a case for relief.
[27] Cf BAO16 v Minister for Immigration [2018] FCA 1463 at [71]
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 April 2019
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