SZNBX v Minister for Immigration
[2018] FCCA 445
•8 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZNBX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 445 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the applicants had a right to enter and reside in other European Union countries – whether the applicants’ right to enter and reside in other European Union countries was squarely raised with the Administrative Appeals Tribunal – whether the applicants had taken all possible steps to avail themselves of the right to enter and reside in other European Union countries – whether the Administrative Appeals Tribunal had a duty to investigate the applicants’ claims – whether Administrative Appeals Tribunal failed to consider the applicants’ evidence – whether the applicants’ complaints were supported by probative material – whether the Administrative Appeals Tribunal’s adverse credibility findings were tainted by jurisdictional error – whether there was information that Administrative Appeals Tribunal was required to give to the applicants for comment – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 48A, 65, 411, 417, 422B, 424A, 424AA, 425, 474, 476, Migration Regulations 1994 (Cth), reg.2.01. Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCAFC 124 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 |
| First Applicant: | SZNBX |
| Second Applicant: | SZNBY |
| Third Applicant: | BAZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1107 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 21 February 2018 |
| Date of Last Submission: | 21 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2018 |
REPRESENTATION
| The applicant was unrepresented but had the assistance of a Russian interpreter |
| Counsel for the Respondents: | Mr Patrick Knowles |
| Solicitors for the Respondents: | DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1107 of 2016
| SZNBX |
First Applicant
| SZNBY |
Second Applicant
| BAZ16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 7 April 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent made on 18 September 2014 (“the Delegate”), refusing the applicants a Protection (Class XA) visa (“Protection visa”).
The first applicant (“the Applicant”) claims to be a citizen of Latvia and who fears harm from Latvian authorities in Latvia. The second applicant and the third applicant are the Applicant’s de facto partner and son respectively, and their claims depend on those of the Applicant.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a Protection visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.
Background
On 5 April 2008, the Applicant and the second applicant entered Australia on three-month tourist visas.
On 16 May 2008, the Applicant applied for a protection visa with the second applicant as a member of the family unit dependent upon his application.
On 31 July 2008, a delegate of the first respondent refused the application.
On 25 November 2008, The Refugee Review Tribunal (“the First Tribunal”) reviewed the application for review and affirmed a delegate of the first respondent’s decision.
On 19 December 2008, the Applicant sought judicial review of the First Tribunal’s decision by the then Federal Magistrates Court.
On 10 September 2009, the Applicant’s application to the Federal Magistrates Court was dismissed.
On 28 July 2009, the Applicant appealed to the Full Federal Court.
On 1 December 2009, the Applicant’s appeal to the Full Federal Court was dismissed.
On 24 December 2009, the Applicant applied for special leave to the High Court of Australia.
On 26 May 2010, the High Court of Australia dismissed the application for special leave on the papers.
On 2 July 2010, the applicants sought Ministerial intervention under s.417 of the Act.
On 18 August 2010, the Applicant advised the Immigration Department that the second applicant was mentally ill.
On 21 October 2010, the Minister decided not to intervene.
On 26 November 2010, the Applicant made another request for Ministerial intervention.
On 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Act and introduced a new criterion to allow for the grant of a protection visa in situations that engaged complementary protection obligations.
On 19 July 2012, the Minister decided not to intervene.
On 2 August 2012, the Department received advice from the Applicant that the second applicant was four months pregnant.
On 29 December 2012 the Applicant’s son was born.
On 17 April 2014, the Applicant lodged a Protection visa application with the second applicant and his son as members of the family unit dependent upon his application.
On 18 September 2014, the Delegate refused to grant the visas.
On 10 October 2014, the applicants applied to the Tribunal for review of the Delegate’s decision.
On 10 March 2016, the Applicant appeared before the Tribunal.
On 7 April 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection visa.
On 5 May 2016, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.
Section 48B of the Act provides that the Minister may determine that s.48A of the Act does not apply to prevent an application for a protection visa in certain circumstances.
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The Applicant provided a statement in support of his Protection visa application in which he stated:
a)He may suffer persecution upon his return to Latvia because he wished to draw attention to police corruption in Latvia.
b)He would be personally targeted because in 2002 he was arrested on fabricated criminal drug charges and coerced into a confession through physical torture and police threats against his brother.
c)Upon his release in 2007, he instigated litigation in order to attract public attention to corrupt police practices and to also seek compensation for unlawful imprisonment.
d)He received numerous threatening phone calls and threatening notes demanding he withdraw the litigation and depart Latvia.
e)His apartment was searched by police on two occasions and he was physically assaulted by three unknown assailants prior to his departure.
f)He was threatened with a return to prison should he return to Latvia.
g)The second applicant would suffer mental harm should she return to Latvia because she had been diagnosed in Australia with post-Traumatic Stress Disorder and Major Depression. She had received medical treatment on two occasions as an in-patient of Sutherland Hospital psychiatric unit. The first, in October in 2009 after the applicant bought her to the hospital concerned for her safety. The second in November 2010, when she was bought to the emergency department of Sutherland Hospital by Police who found her threatening suicide. The Applicant claimed that this instance coincided with the receipt of a negative outcome to a request to the Minister.
The Delegate’s decision
The Delegate was satisfied that the Applicant was a citizen of Latvia and that Latvia was his country of reference for the purpose of assessing protection obligations under the convention. The Delegate was further satisfied that Latvia was the Applicant’s receiving country.
The Delegate found that the Applicant might have had a legally enforceable right to enter and continue to reside in a number of European Union (“EU”) countries within the meaning of s.36(3) of the Act.
The Delegate noted that the Applicant did not take all possible steps to avail himself of a legally enforceable right to enter and reside in a relevant EU country.
The Delegate considered that Australia did not owe the Applicant protection obligations under the Convention.
The Delegate was not satisfied that the harm claimed by the Applicant on behalf of the second applicant was significant harm.
On 17 April 2014, the Delegate refused the Applicant’s application for a Protection visa.
The Tribunal’s review and decision
On 10 October 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 2 February 2016, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 10 March 2016 to give oral evidence and present arguments.
On 10 March 2016, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that while the Applicant’s Protection visa claims had already been determined as refugee claims, new circumstances had arisen. The Tribunal noted that those circumstances included the mental illness of the second applicant and the birth of the third applicant.
The Tribunal noted that in determining whether or not the third applicant met s.36(2) of the Act it would be necessary to consider whether he was a member of a family unit. The Tribunal noted it was relevant whether or not the third applicant faced a real chance of Convention relation persecution for reasons of his “membership of a particular social group”, being his own family.
The Tribunal noted that the issues before it were whether or not the third applicant was entitled to protection as a refugee or on complementary protection grounds and whether the second applicant was entitled to protection as a refugee or on complementary protection grounds due to her mental illness which arose after the determination of the first protection visa application.
The Tribunal noted the First Tribunal’s findings in relation to various aspects of the applicants’ claims as follows:
i)The First Tribunal concluded that the Applicant confessed to the drug related charges because he was guilty of the charges.
ii)The First Tribunal did not accept as credible that that the case against the Applicant was contrived or that he confessed under any duress.
iii)The First Tribunal also found that those claims were fabricated by the applicants in order to enhance their protection visa applications.
iv)The First Tribunal did not accept as credible that the Applicant confessed to a crime in Latvia that he did not commit.
v)The First Tribunal did not accept that the Applicant had engaged a lawyer to have the Applicant’s conviction quashed or that he sought compensation.
vi)The First Tribunal did not accept that the Applicant’s case had been dropped and removed from court records and that the Applicant had been intimidated in relation to the matter.
vii)The First Tribunal accepted the Applicant and the second applicant left Latvia as soon as the Applicant’s probation period ended.
viii)The First Tribunal gave weight to the fact that the Applicant was able to leave on a valid passport issued in March 2008.
ix)The First Tribunal gave no weight to the second applicant’s claimed fear of being harmed by Latvian authorities, having rejected the Applicant’s claims about facing such harm.
x)The First Tribunal was not satisfied that the applicants faced a real chance of serious harm by the police, or the authorities, or the government or anyone else in Latvia for the essential and significant reason for one or more Convention grounds.
The Tribunal found that based on evidence of previous travel (e.g. to Germany) provided by the Applicant in his original protection visa application, the applicants could take steps to enter and reside in other EU countries.
The Tribunal had regard to the contents of the US Department of State’s Country Reports on Human Rights Practices for 2014: Latvia. The Tribunal also had regard to information about mental health care in Latvia on the European Commission website. The Tribunal noted that evidence did not suggest that the state discriminated against or persecuted people with mental health issues.
The Tribunal had regard to information about the EU located on the EU website as well as other identified independent country information.
The Tribunal noted that the Delegate assessing the current visa application did not interview the applicants. The Tribunal noted that the Delegate found that the Applicant had a legally enforceable right to enter and reside in several other EU countries, that he had not taken “all possible steps” to avail himself of that right, and that he did not have a well-founded fear of persecution in those countries. The Tribunal noted that the Delegate referred specifically to Finland, Spain, Sweden and the United Kingdom as countries where the Applicant had the right to long-term stay and would not be at risk of Convention related persecution or of refoulement to Latvia. The Delegate found that the Applicant did not meet ss.36(3) to (5) of the Act.
The Tribunal noted that the Delegate did not believe that the Applicant was ever jailed in relation to the drug offence because he claimed to have been issued a passport in 2006 at which time he claimed to be in prison. Elsewhere he had claimed that he was in jail from 2001 to 2007.
The Tribunal gave particular regard to the Applicant’s claims that the second applicant may suffer mental pain potentially leading to self-harm due in part to inadequate treatment for people with mental health issues in Latvia.
The Tribunal noted that it received a letter from a mental health professional asking that the second applicant not be required to give evidence at a Tribunal hearing and that the Tribunal should consider the Applicant’s evidence and all medical and other professional reporting as compelling evidence provided on the second applicant’s behalf.
Based on material from mental health professionals, the Tribunal accepted that there was deterioration in the second applicant’s mental health. The Tribunal noted that the Applicant argued that the second applicant’s mental state had been affected by the injustice they faced in Latvia and by disbelieving decision makers in Australia.
The Tribunal considered the Applicant’s claims in relation to the circumstances surrounding his arrest in Latvia, noting his claims that he was “framed” with drug related offences. The Tribunal further considered evidence provided at the hearing in relation to the circumstances surrounding the Applicant’s confession to drug related offences. The Tribunal put to the Applicant inconsistencies in relation to his claims.
The Tribunal also considered an anonymous, threatening handwritten note submitted with the Applicant’s first protection visa application that the Applicant claimed he received in his mailbox around October 2007 in relation to the pursuit of his case in Latvia. The Tribunal considered that the handwritten note was unusual in light of the evidence provided. The Tribunal noted it was unusual that the police would so fear losing the court case the Applicant claimed to have initiated, that they would send him a threatening note in light of all the evidence against him and his confession of guilt, forced or otherwise.
The Tribunal put to the Applicant that as he was issued with a passport in March 2008 it suggested the authorities had considered he had paid his debt to society and he was free to travel.
The Tribunal asked the Applicant what factors might stop him from pursuing the clearing of his name should he return to Latvia. In response, the Applicant referred to the second applicant’s illness as well as the possibility of new threats.
The Tribunal asked the Applicant if he had any further information as to the court in Latvia in which his matter had been lodged. The Applicant replied that he did not know. The Tribunal invited the Applicant to comment on findings, particular those of the First Tribunal, in regard to his claims that court action against the police in Latvia had been entirely unsupported and that the claims lacked credibility. The Tribunal noted the Applicant’s response.
The Tribunal invited the Applicant to respond to the issue arising from s.36(3) of the Act. The Tribunal specifically invited the Applicant to comment on findings by the Delegate regarding his not having taken all possible steps to avail himself of a legally enforceable right to enter and reside in other EU countries. The Tribunal noted the Applicant’s response that any move to exercise his right “…could be tragic” for the mental health of the second applicant.
The Tribunal noted that the applicant did not provide any information that would suggest that he or his family lacked a legally enforceable right to enter and reside in other EU countries; that he or his family would be barred in any way from working in any other EU country; that he would necessarily be unable to secure accommodation; or, that he would face persecution for a Convention reason in those countries.
The Tribunal noted that the Applicant made clear that there is no specific person in Latvia who would intentionally maintain, ignore or exacerbate the second applicant’s condition and that no one would specially make her suffer for any reason. The Tribunal noted that the Applicant said that the second applicant was very fragile and that she was psychologically and emotionally vulnerable.
The Tribunal outlined some of the claims made by the Applicant in relation to the second applicant’s mental health. The Tribunal considered various reports related to the second applicant’s condition and any links between her symptoms of anxiety and depression and her husband’s experiences in Latvia.
The Tribunal asked the Applicant whether there would be any intention to harm him or his family in relation to anything other than his interest in having his past conviction quashed. The Tribunal noted that the Applicant did not suggest there would be any such intention.
The Tribunal put to the Applicant that it was not apparent that the second applicant would suffer harm in relation to her psychological condition for any Convention related reason. The Tribunal noted that in post hearing submissions, the Applicant said the second applicant’s psychological condition only existed due to the false conviction and the threats of that he harm he claimed to have suffered in Latvia.
The Tribunal noted that the second applicant was ethnically Russian and that there was some evidence of anti-Russian sentiment in Latvian society. However, the Tribunal was not satisfied that the second applicant faced a real chance of persecution in Latvia in the reasonably foreseeable future for the separate or cumulative reason of being ethnically Russian.
The Tribunal noted that the applicants both spoke to their son in Russian rather than Latvian. The Tribunal noted that the Applicant claimed some proficiency in English and that he and his family had little to no ability in German or other European languages. The Tribunal further considered the Applicant’s claims that ethnic Russians were required to use the national language of Latvian in all dealings with the authorities. The Applicant said he considered this to be discriminatory towards the country’s ethnic Russians and evidence of discrimination.
The Tribunal found that the applicants all had a legally enforceable right to enter and reside in other EU member states. The Tribunal gave weight to the Applicant’s indication that he and the second applicant had a legally enforceable right to enter and reside in other EU states.
The Tribunal gave some weight to both applicants having entered freely for unspecified periods and resided in Germany. The Tribunal gave no weight to the Applicant’s reservations about the accommodation situation Germany or to his claim about landlords being reluctant to let to people from other countries that may be liable to deportation.
The Tribunal found that the applicants had not taken all possible steps to avail themselves of the right to enter and reside in other EU states. The Tribunal was not satisfied on the evidence before it that the authorities or non-state parties in EU countries mistreat people with mental health issues.
The Tribunal gave weight to the Applicant’s statement that he and the second applicant did not fear her being persecuted for reasons of her mental health in Latvia or other EU countries. Rather they feared that the change of environment had the potential to exacerbate her anxiety, stress and ideations of self-harm.
The Tribunal considered the claim of risk of a decline in the second applicant’s mental health in the event the Applicant pursued his case in Latvia. The Tribunal considered such a claim to be speculative.
The Tribunal was not satisfied that the applicants faced a real chance of a Convention related persecution or a real risk of significant harm in the event of removal to or entry into Latvia’s fellow EU countries, where the Tribunal found they had a legally enforceable right to enter and reside.
The Tribunal was not satisfied that there was a real chance that other EU states would refoule the applicants to Latvia.
The Tribunal did not believe the Applicant’s claims that he was framed for drug related offences. The Tribunal did not believe that the Applicant had genuine subjective grounds for instigating court proceedings to clear his name. The Tribunal did not believe that such a case was instigated by the Applicant. The Tribunal did not accept that the Applicant was threatened or put under pressure to leave Latvia. The Tribunal did not accept that the Applicant would continue to fight his past conviction in a court in Latvia but for the fear of being persecuted, because it did not accept that he ever did commence such an action in the first place.
The Tribunal was not satisfied that the members of the family unit would face a real chance of Convention related persecution in the reasonably foreseeable future, including for reasons of being members of the “particular social group” characterised as the Applicant’s family. The Tribunal did not accept that the treatment of Latvian as the standard language for dealings with the authorities and public service constituted discrimination against ethnic Russians or any other ethnic minority.
The Tribunal was not satisfied that the second applicant faced a real chance of Convention related persecution in relation to her psychological condition. The Tribunal did not accept that second applicant’s condition arose or declined due to the Applicant having been wrongly convicted or threatened in Latvia. The Tribunal found that this connection of unrelated facts constituted a false claim introduced to enhance the Protection visa application.
The Tribunal was not satisfied that the applicants faced a real chance of Convention related persecution in Latvia and that their claimed fear of Convention related persecution was not well founded.
The Tribunal considered whether the applicants met the alternative criterion in s.36(2)(aa) of the Act.
The Tribunal noted that the Applicant’s claims under s.36(2)(a) about threats in Latvia failed on credibility grounds and were no more able to succeed under s.36(2)(aa). The Tribunal was not satisfied that the second applicant’s mental health condition would lead her or her family to face the death penalty, arbitrary deprivation of life or any intentional infliction of significant harm on her for that or any other reason in Latvia. The Tribunal was not satisfied that the second applicant’s mental health issues provided substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Latvia that there is a real risk that she or the other applicants would suffer significant harm.
The Tribunal was not satisfied that any claims about Russian ethnicity provided substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Latvia there would be a real risk that the applicants would suffer significant harm.
The Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Latvia that there is a real risk that the applicants would suffer significant harm. Accordingly the Tribunal was not satisfied that the applicants were people in respect of whom Australia had protection obligation under s.36(2)(aa) of the Act.
Accordingly, having determined that the Applicant did not satisfy the refugee criterion in s.36 (2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of an interpreter. The Applicant confirmed that he appeared on behalf of all applicants.
The Applicant confirmed that he attended a directions hearing before a Registrar of this Court on 23 June 2016. On that occasion, the applicants were given leave to file an Amended Application and evidence and submissions in support. The applicants were also given the contact details of legal services providers and translating and interpreting services.
At the outset of the hearing, I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the Applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The Applicant confirmed that he relied upon the grounds contained in the Amended Application filed on 2 August 2016. Those grounds are as follows:
“Ground l. Effective state protection.
1. The tribunal said, “on the evidence before me, the applicants all have legally enforceable right to enter and reside in other EU member states”. The tribunal also said that we “had not taken all possible steps to avail themselves of the right to enter and reside in other EU states” (Germany in particular).
2. The evidence the tribunal referred to are as follows:
2.1. Page 8 (paragraph 16). “In the original application, [the Applicant] submitted evidence of his having travelled to Germany, an EU state, and Russia in or prior to 200 l. He has not suggested that any subsequent circumstances have diminished his legally enforceable right as an EU citizen to enter Germany or another EU state”
2.2. Page 18 (paragraph 48). “I give weight in this case to their both having freely entered and resided in Germany.”
2.3. Given the aforementioned “evidence” the Tribunal concluded: “I find on the evidence before me that the applicants have not taken all possible steps to avail themselves of the right to enter and reside in other EU states. For example, one possible step that [the Applicant] and [the second applicant] could both have taken would have been to enter and reside in Germany, a fellow EU state near Latvia where they have both resided temporary in the past” (page 18, paragraphs 48).
3. The tribunal fabricated its “evidence.”
3.1. Neither me nor my partner resided temporary in Germany (I travelled to and stayed in Germany for a couple of days as a tourist in 2001).
3.2. In 2001 Germany (as well as other EU states) was not “a fellow EU state.” Latvia joined EU in 2004.
3.3. In 2001 I had no right to enter and reside in other EU states as I had to apply for a visa to enter and stay in these states.
3.4. After Latvia joined EU I had no “legally enforceable right” to enter and reside in other EU states as I had a criminal conviction.
3.5. The tribunal accepted that I had a criminal conviction. Therefore it should have accepted that I could have been denied entry to or expelled from a “fellow EU state.” According to EU's Directive, which governs the free movement of EU citizens between Member States, free movement can be denied on grounds of “public policy, public security or public health.” This applies to entry, exit and stay in a country. Even though the law states that a criminal conviction cannot automatically justify blocking free movement rights, there is a proportionality test to be applied on a case-by-case basis. Given that crimes related to “drugs” are the most serious crimes and that my conviction was quite recent (in 2008), there was obviously an extremely strong case that I could have been refused entry.
4. In relation to my wife the tribunal said “there was no evidence that authorities in EU countries mistreat people with mental health issues; on the contrary, countries like Germany and the UK are highly related in relation to treatment of people with mental health issues”.
5. The “evidence” the tribunal referrers to do not relate to citizens of “other EU states” but to citizens of “host member state”. As I have already mentioned, according to the above-mentioned EU's Directive, should a person or persons become a burden on the social services of the host Member State they could be expelled from an EU member state on grounds of public health.
6. The tribunal accepted that my wife had been suffering from severe mental illness. Therefore it should have accepted that we could have been expelled from a EU member states on grounds of public health.
7. The Tribunal ignored relevant facts and material and relied on material which did not exist. Accordingly the tribunal erred in its conclusion that we had effective state protection in & third country under s 36(3) of the Act.
Ground 2. Credibility.
8. “On the evidence before it” the tribunal found that our claims about threats in Latvia failed on credibility grounds and are no more able to succeed under s.36(2)(aa). The Tribunal did not believe my claims about drugs being planted, me being convicted for a crime I did not commit, instigation of court proceedings, etc.
9. On a number of occasions the tribunal referred to “evidence”, which, do not exist. For example the tribunal said “I consider it badly speculative and quire far-fetch that he would ever pursue such a course of action (i.e. to apply to a court) in any jurisdiction. Given the fact the tribunal did not give any details as to why it is speculative and “quite far-fetch” can such “consideration” be regarded as “evidence”?
10. Before applying to the tribunal I had pursued similar actions in Australia (applied to Federal Magistrates, Federal and High courts). According to the tribunal, such a course of action (not to mention current proceedings) are also “badly speculative and quire far-fetch”.
11. If the tribunal did have adverse evidence “before it” it should have given me an opportunity to comment upon and respond to these matters.
12. It is well settled that where procedural fairness requirements apply decision-maker must provide an affected person with “an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made”
13. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.”
(Errors in original)
The entirety of the grounds was interpreted for the Applicant in full and he was invited to say whatever he wished in support.
Ground 1
At the heart of the Applicant’s complaints in Ground 1 is a contention by the Applicant that he did not have a legally enforceable right to enter and reside in other EU countries; and, that in reaching that conclusion the Tribunal fabricated evidence and ignored relevant facts and material.
Section 36(3) of the Act provides as follows:
“(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.”
The Applicant submitted that the Tribunal had accepted that he had a criminal conviction. The Applicant submitted that because he had a criminal conviction, he did not have a right to enter and reside in other EU states.
The Applicant submitted that the Tribunal’s finding that the applicants all had legally enforceable rights to enter and reside in other EU member states and had not taken all possible steps to avail themselves of the right to enter and reside in other EU states, was based on the Applicant’s evidence that he and the second applicant had freely entered and resided in Germany and Russia following his conviction in Latvia, and following his regular obtaining of a passport in Latvia.
The Applicant also submitted that the second applicant did not have a legally enforceable right to enter and reside in EU countries on the grounds of public health, given her deteriorated mental health condition.
The applicant submitted that the Tribunal should have evaluated whether an EU directive would have prevented the entry of the Applicant and the second applicant on the grounds of public policy, public security or public health.
In his written submissions, the Applicant referred to Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91 (“SZRHU”) in support of that proposition.
However, Buchanan J in SZRHU, noting that s.36(3) of the Act was enacted in December 1999, referred to V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018 (“V856”), did not accept that the “right” in s.36(3) of the Act meant a “legally enforceable right”. Tracey, Robertson and Griffiths JJ agreed with the reasons of Buchanan J.
Flick J in SZRHU, whilst agreeing with Buchanan J, found that a person recognised as having a “right of entry” may have that right abrogated or qualified by an exercise of legislative power (see SZRHU at [120]). At [129] of SZRHU, Flick J stated as follows:
“129. Excluded from the ambit of such a “right” would be the practical ability of an individual to cross a border without permission or possibly illegally. It could not readily be contemplated that the Australian Legislature, while seeking to “curb” the rights of asylum seekers, foist upon them the role of some ancient mariner – cursed to travel the seas with some uncertain hope of being able to secure entry at some unknown port. But where a Sovereign State has recognised the ability of a person or persons of a particular description, s 36(3) provides that such persons should disembark at that foreign port and not Australia.”
In V856, Allsop J stated that the “right” in s.36(3) of the Act did not exclude the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement. Buchanan J concluded that s.36(3) of the Act did not refer to, or presuppose, a legally enforceable right under domestic law (SZRHU at [45] and [89]).
The Applicant said that an EU directive that he provided to the Tribunal, stated that a criminal conviction may result in the refusal of entry; and, that the Tribunal should have examined the possibility of the Applicant being denied entry to EU states because of his criminal conviction.
In relation to the second applicant, the Applicant submitted that the EU directive suggested that a person who became a burden on the social services of a host member state could be expelled from an EU member state on the grounds of public health. The Applicant submitted that the Tribunal should have accepted that the second applicant could have been expelled from EU member states on the grounds of public health.
To the extent that the Tribunal found that the Applicant and the second applicant could have taken steps to enter and reside in Germany, a fellow EU state near Latvia where they had both resided temporarily in the past, the Applicant submitted that neither he nor the second applicant had ever resided in Germany. The Applicant again submitted that neither he nor the second applicant had a legally enforceable right to enter other EU states; the Applicant because of his criminal conviction; and, the second applicant on the grounds of public health.
The Applicant submitted that before it could be determined whether “all possible steps” had been taken, it was necessary to determine whether the right to enter and reside in an EU state was a presently existing right available at the time of decision.
The respondent submitted that none of the issues now raised by the Applicant as an obstacle to entering and residing in another EU member country were raised before the Tribunal. The only reasons proffered by the Applicant to the Tribunal as to why he could not live in another EU member country was because the second applicant’s current mental health meant that relocation “could be tragic”; and, because the Applicant may not be able to find accommodation in Germany due to the discrimination by landlords against foreigners.
The Tribunal considered those submissions of the Applicant but rejected each of them.
Counsel for the first respondent contended that the Applicant’s claims not to be able to enter and reside in EU countries because of public security or public health reasons were not squarely raised by the applicants on the face of the material before the Tribunal (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).
The Applicant told the Court that he had indeed given the Tribunal a copy of the relevant EU directive. The Delegate referred to an EU directive as part of the material before it. That directive was described as follows:
“Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC):”
The First Tribunal hearing also made reference to a Europa internet site in the following terms:
“47. The Tribunal referred to material which indicated that the applicants, as citizens of an EU member country, can enter and reside in any EU country. The Tribunal referred to the Europa internet site ( which provides details on provisions and laws for free movement within Europe, residence, employment, social security benefits, and other rights/obligations, for citizens of EU countries who want to live in other EU countries.
48. The Tribunal commented that EU countries, such as the UK, provided a high level of protection for person living there. The Tribunal commented that the US Department of State, Country Reports on Human Rights Practices – 2007, referred to above, had details of protection arrangements in all of the European countries which they could live. The Tribunal commented that those reports indicate that EU countries in general provided a high standard of protection for person living within their borders. The Tribunal commented that if the applicants lived in the EU and they needed protection they will have access to it and it would be high quality protection. The first named applicant stated that he did not wish to live in another European country. He stated that he was in Australia and he asked the Australian government for protection.”
The Applicant was not sure which of these pieces of country information (i.e. Directive 2004/38/EC or reflected the directive that he had given the Tribunal, but agreed that it was one of them.
It is also apparent from the reasons provided by the First Tribunal that the Tribunal received a submission from the applicants dated 21 November 2008 in which the Applicant stated that he had approached several EU embassies and asked them whether he could enter and reside in those countries despite his criminal conviction in Latvia. The Tribunal noted that the Applicant asked the Tribunal to delay in makings its decision until the embassies had provided him with a response. However that request by the Applicant was refused by the Tribunal. The Tribunal referred to that matter as follows:
“51. The Tribunal received a submission from the applicants on 21 November 2008. The first named applicant stated that he had approached several EU embassies and asked them whether he can enter and reside in those countries despite his criminal conviction in Latvia. He asked the Tribunal to delay in making a decision until the embassies provided him with a response. An officer of the RRT contacted the applicant at the tribunal’s request and indicated to him that his request had been denied.”
In the circumstances, the reasons of the First Tribunal suggest that the Applicant was contending that he did not have a right to enter an EU member state because of his criminal conviction. The Applicant’s reliance on the deteriorating health of the second applicant did not arise until the hearing before the Tribunal the subject of this judicial review application.
The emphasis of the Tribunal’s reasoning, consistent with the Delegate’s decision, was that the applicants had not taken “all possible steps” to avail themselves of protection in another country.
Further, there was no evidence before the Tribunal that the applicants had taken any steps whatsoever to seek to enter or reside in any EU state. There was no mention to this Tribunal on the face of its decision record that the Applicant had or was pursuing any EU embassy as to whether he could enter or reside in an EU state with a criminal conviction.
The Applicant was given an opportunity at the directions hearing 23 June 2016 to file and serve any further evidence upon which he wished to rely, including any transcript of the Tribunal hearing. The Applicant declined to file any further evidence or transcript of the Tribunal hearing. In the circumstances, I accept as accurate the Tribunal’s summary of various exchanges that it had with the Applicant and its summary of the material and submissions before it. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
In the circumstances, there was no evidence before the Tribunal to support the Applicant’s assertion that he and/or the second applicant may be excluded from other EU counties because of his criminal conviction or her health conditions. As counsel for the first respondent submitted, even if EU countries do retain a discretion to exclude citizens of other EU countries on account of public security and public health, there was no evidence before the Tribunal to suggest that the discretion would be applied in the case of the Applicant or the second applicant.
It could only be at that time of seeking entry and residence, that any discretion might be applied. Certainly, there was no legislative evidence before the Tribunal to suggest that any EU member country had statutorily excluded any person form entering or residing in its country because of any particular criminal conviction or any particular mental health condition.
The Tribunal dealt with the extent to which the second applicant’s health conditions may have affected her ability to enter and reside in an EU member state, including the risk of any refoulement, and its effect, to Latvia.
The Applicant’s submissions to the Tribunal in relation to the second applicant’s health appeared to centre on her inability to adapt to a new place because of her fragile health. The Tribunal acknowledged material before it that suggested that the Applicant’s experiences in Latvia brought on anxiety and depression symptoms in the second applicant.
The Tribunal also asked the Applicant whether there would be any intention to harm him or his family in Latvia in relation to anything other than his interest in having his past convictions quashed. The Tribunal noted that the Applicant responded that he did not suggest that there would be any, although he stated that any present or future mention of his aborted 2007 court application caused the second applicant great distress.
In the circumstances, the Tribunal’s finding that the applicants had not taken all possible steps to enter and reside in EU member countries was open to it on the evidence and material before it and for the reasons it gave. Other than the reference by the First Tribunal to the Applicant’s statement that he had approached several EU embassies to ask whether he could enter and reside in those countries despite his criminal conviction in Latvia, there was no evidence before the Tribunal that the Applicant would be denied entry to any EU member country for that reason.
In relation to the Applicant’s submission that the Tribunal should have investigated for itself whether the applicants could enter and reside in another EU country, there is no general obligation on a Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25] per Heerey, Nicholson and Mansfield JJ; W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 at [74]-[78] per Nicholson J; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21] per Jacobson J). However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further. Indeed, having told the First Tribunal that he was making inquiries of EU embassies as to the effect of his criminal conviction on his ability to enter and reside in and EU country, there is no evidence before the Court that the Applicant pursued those enquiries or that they produced any result.
Otherwise, the Tribunal’s findings in relations to s.36(3) of the Act would appear to be open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the issues raised by s.36(3) of the Act and explored those with the Applicant.
As stated above, the following were all matters properly considered by the Tribunal and in respect of which the Tribunal made findings that were open to it on the evidence and material before for it for the following reasons that it gave:
i)the absence of the Applicant raising the effect of his conviction on any right of entry and residence to an EU state squarely before the Tribunal;
ii)the absence of any evidence whatsoever that prevented his entry into an EU state with a conviction;
iii)the opportunity given to the Applicant to present evidence and present arguments;
iv)the absence of any attempt by the applicants to enter an EU state (consistent with the Applicant’s own evidence);
v)the Tribunal’s consideration of the second applicant’s health issues in entering or being able to enter and reside an EU state;
vi)the Tribunal’s consideration of both the risk to the second applicant of refoulement to Latvia;
vii)the Tribunal’s consideration of the risk of persecution of the second applicant in Latvia because of her mental health condition;
viii)the consideration of any risk to the Applicant of refoulment to Latvia;
ix)the Tribunal’s consideration of the risk of persecution of the Applicant in Latvia;
x)the rejection by the Tribunal of the applicants claims.
In the circumstances, having found that the applicants had not taken all necessary steps to avail themselves of a right to enter and reside in an EU state, and in the absence of any evidence to the contrary, the failure of the Tribunal to consider further the effect of the Applicant’s conviction is not capable of establishing jurisdictional error.
Accordingly, the applicants’ assertions in Ground 1 that, in reaching its conclusions, the Tribunal fabricated its evidence and ignored relevant facts and material are not made out.
Ground 2
In Ground 2, the applicants challenged the Tribunal’s adverse credibility finings in relation to the Applicant’s claims a) about threats in Latvia, b) that his conviction came about by drugs being planted upon him, and c) that he had instigated Court proceedings in Latvia. In written submissions, the Applicant contended that he should have been given an opportunity to comment on adverse evidence.
The Applicant’s complaints in Ground 2 about the Tribunal’s credit findings misunderstand the circumstances in which the Tribunal is obliged to give information to an applicant for comment.
Certainly, if the Tribunal failed to consider contentions put by the Applicant supported by probative material, such a failure may demonstrate jurisdictional error (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 45; NAVK v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FCAFC 124 at [38]). Whereas if the Tribunal found the Applicant’s evidence to be inherently improbable and therefore was not satisfied as to its accuracy, that is a finding for which positive evidence is not required. It is more a matter of disbelief of the Applicant’s evidence for expressed reasons. Such reasoning does not demonstrate jurisdictional error on the part of the Tribunal (see WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17]).
An adverse credit finding is not unreasonable or illogical simply by virtue of it having been made. Whether a credibility finding is tainted by jurisdictional error is a case specific enquiry and it is necessary in any judicial review to analyse in detail what the decision maker has decided (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99).
In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, the Full Court of the Federal Court approved Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, where Wigney J stated at [56]:
“56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at 455-456 [14] - [15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal discussed with the Applicant in some depth its concerns about his evidence and considered the explanations provided by the Applicant before concluding it was not satisfied about the veracity of the Applicant’s claims in relation to those identified in Ground 2.
It was for the Applicant to satisfy the Tribunal that he met the criteria for protection. It is clear from the Tribunal’s reasons, that the Tribunal understood the claims being made by the Applicant. In particular, the Tribunal explored with the Applicant’s claims to have had drugs planted on him in Latvia, his claim to have been convicted for a crime he did not commit and his claim to have instituted court proceedings in Latvia to overturn his conviction.
The First Tribunal accepted that the Applicant was convicted of drug related charges and imprisoned in Latvia from 2002 until 2007 and found that the Applicant had confessed to the drug related charged because he was guilty of the charges. However, the First Tribunal did not accept as credible that the case against him was contrived or that he had confessed under duress. The First Tribunal found those claims to be fabricated by the applicants to enhance their protection visa applications. The First Tribunal did not accept as credible the claim that the Applicant confessed to a crime in Latvia that he did not commit. The First Tribunal concluded that the applicants did not face a real chance of serious harm for any convention related reason in Latvia.
The First Tribunal’s decision record discloses that it noted the Applicant’s claim that he confessed under duress, but commented that the circumstances the Applicant described suggested that he was caught committing a crime and that he confessed to it.
In relation to the court case the Applicant claimed to have instigated, the First Tribunal found there were no documents to support that claim and that the Applicant’s evidence was generally vague in relation to that matter. The First Tribunal explored those claims with the Applicant but was not swayed by his explanations.
The Tribunal concluded adversely to the Applicant as follows:
“On the evidence before me, I do not believe Applicant’s claims about drugs having been planted on him or in his premises. I do not accept on the evidence before me that he was convicted for a crime he did not commit. I do not believe he had genuine subjective grounds for instigating court proceedings to clear his name or seek an apology from the authorities and/or compensation, and on the evidence before me I do not believe that he instigated such a case. Accordingly, I do not accept that he was threatened or put under pressure to leave Latvia. I give weight to his claim about intending to leave Latvia as soon as his parole ended, but I give no weight to the claimed circumstances that he says he pushed him to that decision. I do not accept that he would continue to fight his past conviction inn a court but for the fear of being persecuted because I do not accept that he ever did commence such an action in the first place.”
Those findings were made prior to the Tribunal considering whether the applicant met the complementary criteria at s.36(2)(aa) of the Act. In considering complementary protection, the Tribunal found that the Applicant did not meet the complementary protection criterion based on the failed credibility grounds referred to above.
The Tribunal considered in some detail the Applicant’s claim of court proceedings in Latvia to claim compensation for his past drug conviction as causing the second applicant an exacerbation of anxiety, stress and ideations of self-harm. The Tribunal found that it was speculative and far-fetched that the Applicant would ever pursue such a course of action. The Tribunal noted that it invited the Applicant to comment on findings of the First Tribunal to the effect that the Applicant’s claims regarding court action against the police were entirely unsupported and lacked credibility. The Tribunal noted the Applicant’s response that his error had been in failing to provide the First Tribunal with his lawyer’s contact details. The Tribunal’s decision record discloses that the Tribunal discussed this issue with the Applicant in some detail.
The Tribunal noted that the Applicant said that it upset him that the First Tribunal believed the unsupported claim about him being convicted and jailed but did not at the same time accept his unsupported claim about having tried to take the police to court. The Tribunal stated that it gave this argument “close and careful consideration.”
The Tribunal was entitled to have regard to findings made by the First Tribunal and the reasons for its adverse credibility findings in relation to the Applicant’s claims to have had drugs planted on him, been convicted for a crime he did not commit and instigating court proceedings in considering whether the applicants met the complementary protection criterion. It is well established that it is acceptable for the Administrative Appeals Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).
The Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Otherwise, the Tribunal’s thought processes and assessment of the Applicant’s evidence is not information that the Tribunal is required to give to the Applicant for comment. There was no other information before the Tribunal and to which it had regard that enlivened any obligation under s.424A of the Act. Information does not include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
Accordingly, Ground 2 is not made out.
In the circumstances, the Tribunal complied with the statutory regime in the making of its decision and the conduct of its review.
Accordingly, the Tribunal’s decision is not affected by jurisdictional error and the proceeding before this Court commenced by way of application filed on 5 May 2016 should be dismissed with costs.
I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 8 March 2018
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