MZAKF v Minister for Immigration

[2015] FCCA 2861

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAKF & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2861

Catchwords:
MIGRATION – Judicial review of the Second Respondent’s decision – application for Protection (Class XA) visa – no grounds of review set out – procedural fairness afforded – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425

First Applicant: MZAKF

Second Applicant: MZAKG

Third Applicant: MZAKH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1772 of 2014

Judgment of: Judge Hartnett

Hearing date: 27 August 2015

Delivered at: Melbourne

Delivered on: 23 October 2015

REPRESENTATION

The applicants: In Person

Counsel for the First Respondent: Ms Stone

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The Application filed on 29 August 2014 is dismissed.

2. The applicants pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1772 of 2014

MZAKF

First Applicant

MZAKG

Second Applicant

MZAKH

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants’ Application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) was filed on 29 August 2014. The grounds of the application are:-

   “1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.”

   I note no particulars of the grounds of review are set out in that Application. The grounds are formulaic. It is not for this Court to create grounds for the applicants. The Court can nevertheless ascertain whether any error is readily apparent. Relief sought was in the form of constitutional writs.

2. The applicants are self-represented. No amended application, affidavit evidence or written submissions have been filed by them.

3. The First Respondent seeks dismissal of the Application, together with a costs order. The First Respondent argues no jurisdictional error attends to the decision of the Tribunal dated the 11 August 2014.

History

1. The applicants are citizens of Nigeria. The First Applicant is an adult female and the second and third applicants are her sons, born in 1992 and 1995 respectively. They applied for Protection (Class XA) visas (Protection visas) on 12 March 2013.

2. In a statutory declaration declared on 24 May 2013 in the State of Victoria, Australia the First Applicant claimed to have been married in 1990 to Olarongbe Mohammed Daib, who was the father of the second and third applicants. She claimed that his family was a member of an extremist Islamic group called Ahli-Sunnah. When her husband converted to Christianity the applicants claimed his family poisoned him and he died in 1995. The applicants provided a marriage certificate and death certificate, and the birth certificates of the second and third applicants, as evidence of these claims. The death certificate did not provide a cause of death.

3. The applicants claimed that they now feared harm from the family of the First Applicant’s late husband and their associates in Ahli-Sunnah because of their Christian faith. They provided evidence of their membership of the Baptist Church. They claimed that the family had threatened to kill them, and that the Second Applicant had been slashed on his face and kidnapped for a period of time. They claimed that since 1995 they had relocated several times to try to escape harm but the family would eventually find them and threaten or harm them.

4. The First Applicant claimed that she had subsequently married Benjamin Mosugu in 2006 and that she had four step-children from that marriage. She provided the marriage certificate in support of this claim. She claimed that her husband had been in the military and that this caused her late husband's family to collaborate with Ahli Sunnah who began targeting the applicants in 2009, including destroying the First Applicant’s store in 2012 and bombing their home in January 2013. The applicants provided a police report as evidence of the attack in 2013, which did not record a bombing or an attack and referred only to a fire. The applicants also provided various photographs and country information.

5. The First Applicant claimed that she and her children had valid Tourist visas to travel to the United Kingdom and Australia, but that her husband’s Tourist visa had expired. Departmental records show that the First Applicant’s husband and her two children were refused Visitor visas for Australia in July 2009.  The applicants travelled from Nigeria to the United Kingdom and then determined to travel on to Australia where they claimed they were not known. The First Applicant claimed a “lot of Nigerians” lived in the United Kingdom, and “a lot of them” were in the “Ahli Sunnah group”. The applicants arrived in Australia on 28 February 2013, as the holder of Tourist (Class TR) (Subclass 676) visas in effect for one month until 28 March 2013. They were subject to conditions 8101 (no work) 8202 (study limitation) and 8503 (no further stay).

6. The applicants’ application for the Protection visas, lodged on 12 March 2013, was refused by a Delegate of the Minister on 11 July 2013. The Delegate had regard to holidays taken by the First Applicant in 2011 and 2012, from which she returned to Nigeria and found that these undermined her claims to have been in fear of harm at that time. Similarly, the Delegate considered that the First Applicant’s ability to continue to run her business uninterrupted was inconsistent with her claims. The Delegate found that the documents provided by the Applicant were photocopies with alterations, and noted country information about the availability of false documentation in Nigeria. The Delegate was not satisfied that they supported the applicants' claims. The Delegate concluded that the First Applicant had not experienced persecution in Nigeria for reasons of her religious or any other ground. The Delegate found the Applicant to have fabricated her claims.

7. The applicants applied to the Tribunal for review of the Delegate's decision on 24 July 2013. On 16 August 2013 the First Applicant provided a written statement to the Tribunal, which was in the same terms as the statement provided to the Delegate. The statement attached the same police report as was provided to the Delegate, regarding the claimed attack on their home in 2013.

8. The applicants subsequently retained a migration agent. On 11 December 2013 the Tribunal sent an invitation to appear before it to the applicants’ authorised recipient. The applicants were invited to give evidence and present arguments relating to the issues in their case. In a letter dated 23 December 2013 the agent advised the Tribunal that the applicants wished for the First Applicant’s husband to be contacted by telephone to give evidence at the Tribunal hearing. The letter advised that the second and third applicants were receiving medical assistance for their 'tortured past' and asked whether they were required by the member to give evidence at the hearing. The Tribunal advised the agent that the member did not require the second and third applicants to give evidence, but that the member could only make a decision on the material before him and it was a matter for the applicants and their agent what evidence they wished to present.

9. On 28 January 2014 the agent made written submissions addressing the applicants' claims and the findings of the Delegate, and setting out country information. The submissions attached:-

   a)A letter from the Uniting Church in Australia attesting to the applicants' involvement in the Church since July 2013.

   b)Letters from the Sunbury Baptist Church attesting to the applicants' involvement in the Church for the past 8 months.

c)A letter regarding the First Applicant’s adoption of a child in Nigeria (an issue which was raised in the Delegate's decision).

d)A document from a hospital in Nigeria dated 11 December 2013, stating that Mohammed Olarongbe was treated on 16 November 1995 for food poisoning and died on 18 November 1995.

e)Medical documents regarding the first and second applicants. A letter dated 4 January 2014 stated that the First Applicant was being treated for loss of memory, insomnia, anxiety and depression. A letter regarding the Second Applicant stated that he was being treated for depression and was on medication.

1. On 30 January 2014 the agent submitted a letter from the Asylum Seeker Resource Centre stating that the First Applicant was volunteering there, a letter from a case worker at Uniting Care describing the applicants as suffering from despair and suicidal ideation, and a letter of support from the Sunbury United Football Club.

2. The applicants all attended hearings before the Tribunal on 31 January 2014 and 6 February 2014.  Evidence was also taken by telephone from the First Applicant’s husband. At the hearing documents were provided showing that the applicants' UK visas were cancelled after they applied for protection in Australia.

3. By letter dated 24 April 2014 the applicants were invited to comment on or respond to information. The Tribunal set out in the relevant letter its concerns with the husband's oral evidence and with the applicants' claims more generally. The applicants' agent responded to the letter on 20 May 2014 with written submissions. The submissions attached a report by a counsellor in relation to the Third Applicant which expressed an opinion that he suffered a major depressive episode, was at risk of self-harm, and expressed a genuine fear of returning to Nigeria.

The Tribunal hearing

1. The Tribunal affirmed the Delegate’s decision not to grant the applicants the visa.

2. The findings of the Tribunal are accurately summarised in the First Respondent’s Outline of Submissions as follows:-

   “14. The RRT considered the evidence before it regarding the mental health of the applicants, and the submission made in response to the section 424A letter that the applicants' mental health issues affected their ability to answer questions at the RRT hearing and the Departmental interview. The RRT found at [36] that its assessment of the credibility of the applicants was not based on omissions of memory or concerns about the dates of events. Rather, the RRT stated that its assessment was based on the explanations given by the applicants of actions which they took and a consideration of whether those actions accorded with their claimed fears. The RRT also stated that it had regard to the credibility of the applicants' witness, Benjamin Mosugu. The RRT

   expressed the view that the applicants were able to give evidence at the hearing in a clear and lucid manner and that it was only when concerns and inconsistencies were put to them that their explanations became unclear, inconsistent or implausible, and concluded that they were able to participate meaningfully in the hearing. The RRT concluded that the applicants' mental health issues did not explain the concerns it had with their credibility.

   15. The RRT went on to set out its concerns with the applicants' account of events regarding the claimed bombing of their home in 2013 at [37]-[43]. In doing so the RRT had regard to the submissions provided in response to its section 424A letter, and did not accept the explanations provided. The RRT accepted on the basis of the police report that the applicants' house had burned down, but due to its concerns with the applicants' account it did not accept that it was due to a bombing or targeted attack. The RRT found that it was an accidental fire (see [44]).

   16. The RRT expressed concerns at [45]-[49] that the applicants had travelled to the UK before coming to Australia and did not seek protection there, and in so doing considered and rejected the explanations provided both at the hearing and in the submissions in response to the section 424A letter. At [48] the RRT also expressed concern as to why the first named applicant's husband had not travelled with them to the UK when he had a visa to travel there. The RRT concluded at [49] that the applicants did not seek protection in the UK because they did not have a subjective fear of returning to Nigeria. The RRT considered that they had lied about their reasons for not seeking protection in the UK and that this caused it to conclude that the applicants are not credible and are not witnesses of truth.

   17. The RRT expressed concerns at [50] to [54] as to why the applicants had remained living in Kaduna between 2006 and 2013 given country information that the activities of Ahli Sunnah had increased in that area from 2010. The RRT considered that if the applicants were being targeted by the group from 2009 they would have moved to an area with less terrorist activity. The RRT did not accept the explanations provided in the response to its section 424A letter. The RRT found at [53] that the applicants did not relocate from Kaduna because they were not being threatened or harmed in any way by Ahli Sunnah or anyone else, and concluded at [54] that this caused it to find that the applicants were not credible.

   18. At [55]-[71] the RRT detailed the evidence given by Benjamin Mosugu at the hearing, and found that his evidence was vague and evasive. The RRT considered the explanation provided following the hearing that Mr Mosugu was suffering from dementia, but found at [61] that this claim had been invented to attempt to overcome the RRT's concerns with Mr Mosugu's evidence, which it had explained at the hearing and its section 424A letter. The RRT concluded at [70] that he was not a credible witness and that the events he described did not happen.

   19. The RRT drew conclusions regarding the applicants' credibility at [72]-[77], finding that they were not witnesses of truth, and in so doing had regard to the medical evidence and character references provided. The RRT found that the opinions expressed in the various documents that the applicants had a genuine fear of harm was based on the applicants' own self-reporting, and therefore did not accept those opinions.

   20. The RRT then went on to consider the applicants' claims about the first named applicant's late husband and his family. The RRT found at [81] on the basis of the medical document provided that the husband died of food poisoning. At [82] the RRT rejected the entirety of the applicants' claims on the basis of its earlier findings and its conclusions that the applicants were not witnesses of truth. At [85] the RRT rejected additional claims made in the response to the section 424A letter about recent threats to the applicants and their family.

   21. The RRT accepted at [88] that the applicants were Christian, and accepted that the family of the first named applicant's late husband was Muslim and would view the second and third named applicants as having converted to Christianity. At [90]-[99] the RRT considered country information as to whether this would put the applicants at risk of harm. The RRT found at [91] that there were terrorist attacks against Christians in Nigeria, but found that the risk to the applicants was remote. The RRT concluded that there was not a real chance or real risk of harm to the applicants if they returned to their home in Kaduna city and attended Church (see [97]). The RRT did not accept that the applicants were at risk of harm from the family of the first named applicant's late husband, as it did not accept that they had been harmed by them in the past (see [99]).”[1]

   [1] First Respondent’s Outline of Submissions filed on 19 August 2015 at [14] – [21].

Consideration

1. The Application has no meaningful grounds.

2. The applicants were afforded procedural fairness by the Tribunal in the history as described above and otherwise. The Tribunal complied with Part 7 Division 4 of the Migration Act 1958 (Cth) (‘the Act’). It complied in particular with ss.425 and 424A of the Act. The mental health concerns of the applicants were addressed by the Tribunal and a matter for it. The medical evidence before the Tribunal did not state that the applicants were unable to effectively participate in a hearing.

3. It is apparent that the findings made by the Tribunal were open to it on the evidence before it. Furthermore that the Tribunal afforded to the applicants every opportunity to address those matters of concern to the Tribunal. There is no jurisdictional error in the Tribunal’s conduct of the proceedings.

4. Further no error of law is apparent in the Tribunal’s Decision Record (‘the Decision Record’). The decision is neither illogical nor unreasonable. All of the applicants claims and their elements were carefully and comprehensively considered by the Tribunal. The Tribunal did not accept as credible the applicants and their evidence, including the evidence of the First Applicant’s husband in relation to whom no relevant medical evidence as to his claimed dementia was provided. All of the findings of the Tribunal were open to it on the evidence before it.

5. The Application shall be dismissed. There is no jurisdictional error in the decision of the Tribunal. The applicants shall pay the costs of the First Respondent as claimed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  23 October 2015