SZTSE v Minister for Immigration
[2015] FCCA 3108
•23 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTSE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3108 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 2009 (Cth) r.10.6 |
| Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Selvadurai v Minister for Immigration & Ethnic Affairs & Anor [1994] FCA 1105; (1994) 34 ALD 347 Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208 SZSBR v Minister for Immigration & Anor [2013] FCCA 847 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 |
| Applicant: | SZTSE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3247 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 July 2015 |
| Date of Last Submission: | 8 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr A Silva of Silva Solicitors |
| Solicitors for the Respondents: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application made on 24 December 2013 and amended on 25 March 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3247 of 2013
| SZTSE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 December 2013 and amended on 25 March 2014 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 29 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The Evidence
Before the Court in evidence was the following:
a)The bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).
b)The affidavit of the applicant made on 10 March 2014 attaching the transcript of the hearing before the Tribunal. No objection by the Minister. The affidavit was read into evidence.
c)The affidavit of Mr Nicholas Gratien Silva, solicitor, made on 28 March 2014. The annexures to the affidavit were as follows:
i)The Explanatory Statement (without attachments) for Migration Amendment Regulations 2009 (6).
ii)A two page article from the “Library of the Parliament of Australia”.
iii)A one page article from the Age newspaper.
iv)Two pages said to show reg.10.6 of the Migration Regulations 2009 (Cth) (“the Regulations”) as it stood before 1 July 1999 and the next page showing how it stood after 1 July 1999, following amendment [I understood the relevant year to be 2009].
The Minister objected to the entirety of this affidavit on the basis of relevance. The Minister submitted that the affidavit purported to annex a number of documents that were not before the Tribunal, with reference to the applicant’s ground before the Court concerning “delay”. The affidavit was admitted to allow the applicant to explain her argument.
Background
The applicant is a citizen of Fiji. She arrived in Australia on 30 August 2012. She applied for a protection visa on 26 November 2012, with the assistance of a registered migration agent (CB 1 to CB 62). Included with her application was a “cover letter” (CB 1) and a statement (CB 59 to CB 62), which indicated that her claims to fear harm were based on an “imputed political opinion” and “political opinion”.
The applicant claimed that she left Fiji because she was taken to an “army camp”, was treated poorly and that her children were harmed (CB 19 and CB 59 to CB 62). She claimed that her son worked as a security guard at the resort at which she worked, and that in June 2010 army officers came to the resort, and “took over” security. At that time one of her sons, who had worked at the resort, was beaten by the army officers, as was another son. Her sons were apprehended the following morning by army officers and, when she attempted to intervene, she was beaten and threatened with detention in an army camp. Her sons were released the following day.
Further, in July 2012, when one of her sons sought employment at the resort, he was assaulted by army officers. When she attempted to intervene she was physically and sexually assaulted by the army officers.
The delegate refused the applicant’s application for a protection visa on 22 July 2013 (CB 70 to CB 83). The applicant applied to the Tribunal for review of the delegate’s decision on 2 August 2013 (CB 84 to CB 89). She attended a hearing before the Tribunal (CB 101 to CB 102). Further, her representative provided written submissions to the Tribunal (CB 99 to CB 100).
The Tribunal
The Tribunal accepted the applicant’s account of her experiences with the army as credible. However, it found that if the applicant genuinely feared harm from the authorities she would have applied for protection in Australia at an earlier time. It found that her relevant explanation for the timing in making the application was not credible or reasonable ([22] at CB 109).
The Tribunal also considered that the applicant’s action in remaining in her home in Fiji after the incidents she had recounted was not consistent with her claims to fear harm ([23] at CB 109 to CB 110).
The Tribunal did not accept that the applicant would suffer serious or significant harm on return to Fiji because of any negative profile, or would be considered “anti government” ([24] at CB 110). The Tribunal noted, as arising from the applicant’s evidence to the Tribunal, that her sons, who had been involved in both incidents, had remained in the same house and had suffered no further problems.
The Tribunal considered a number of factual claims made by the applicant for the first time at the hearing, including that her name had been recorded by a senior army officer when she catered a political party event and that she had been “discussed” amongst army personnel ([25] at CB 110 to [28] at CB 111). The Tribunal did not accept these claims.
Application Before the Court
The grounds of the application, as amended on 25 March 2014, are in the following terms:
“1. The Tribunal made jurisdictional error by taking an irrelevant consideration
Particulars
The Tribunal at [22] of its decision at CB 109, held that there was delay in applying for the protection visa.
There was no ‘delay’ in applying for protection visa since the applicant applied for protection visa before her visitor visa expired and while she was under the protection of Australia. The word ‘delay’ connotes not doing something before a deadline. The applicant applied in time.
There is no statutory requirement for applying for protection within a particular period. The most recent legislative intention is to the contrary in that on 1 July 2009 the Federal Parliament removed 45 day time limit for entitlement to work right for protection visa applicants.
Since there was no delay as such it was an irrelevant consideration which allowed the Tribunal to draw negative inference damaging to the applicant’s overall credibility.
2. The Tribunal made jurisdictional error in that the Tribunal failed to deal with the essence of the applicant’s claim about the reason why she will be imputed with an anti-government profile.
Particulars
The Tribunal failed to deal with the applicant’s insult of the Fijian Regime and the possible impact of that on the military in the consideration of whether she will be imputed with an anti-government profile.
See Transcript P16.”
Consideration
In ground one the applicant submitted that the Tribunal made a jurisdictional error by taking into account irrelevant considerations in making its decision. The particulars to the ground direct attention to the word “delay” in the context of the making of the application for the visa some time after the applicant’s arrival in Australia.
The applicant’s argument was as follows. The Tribunal found (“held” there was “delay”) that the applicant had delayed in making her application for a protection visa after arrival in Australia. This was a central part of the reasoning affirming the delegate’s decision not to grant a protection visa to the applicant. In these circumstances, the Tribunal fell into jurisdictional because the matter of “delay” was an irrelevant consideration.
The applicant’s submission was that there is no statutory definition of “delay”. That is, there is no statutory time limit for applying for a protection visa. The Tribunal’s use of the word “delay” implies that there was some time limit in applying, and the Tribunal was therefore in error to proceed in this fashion.
Further, and with reference to the documents annexed to Mr Silva’s affidavit, the Parliament has indicated that where an applicant applies for a visa within the currency of a substantive visa (as the applicant did in the current case) there is no delay. In that sense, the applicant submitted she had applied for the protection visa “within time”.
The documents annexed to Mr Silva’s affidavit were used to argue that in July 2009 the Parliament “removed” the “45 day time limit” in relation to work rights for protection visa applicants. In short, in 1997, the Parliament introduced a provision that any applicant who applied for a protection visa after 45 days in Australia was not entitled to be granted permission to work. The removal of this provision meant that delay in protection visa matters was no longer a relevant consideration.
It must be said that the applicant’s submissions do not address the question the Tribunal was required to answer, and the context within which the consideration of that answer took place.
On a plain reading of the Tribunal’s analysis it is a simplification, and a misrepresentation, of the Tribunal’s reasoning to say the Tribunal imposed some time limit for the making of a protection visa application. Further, that it simply made a finding that “there was delay” in the applicant’s case and, therefore, this disentitled the applicant from the grant of the protection visa.
The question that the Tribunal was statutorily, and relevantly, required to consider and answer was (and with reference to the impugned part of its reasoning at [22] of its decision record (at CB 109)) whether or not the applicant had a well-founded fear of persecution.
It is trite that a “well-founded fear” contains both a subjective and objective element (see Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, particularly at 396, and see further Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 263). The subjective element involves the state of mind of the applicant. Whether an applicant has a genuine fear is a question of fact for the Tribunal to determine from the circumstances presented.
The Tribunal’s reasoning at [22] (at CB 109) is plainly directed to the question of whether the applicant genuinely feared harm if she were to return to Fiji. In this consideration the Tribunal found that the period of time taken after arrival in Australia to apply for a protection visa was a relevant matter.
The Tribunal considered that the applicant’s own evidence was that she knew about the availability of protection visas in Australia before she left Fiji. It did not accept her explanation as to why she did not seek protection at an earlier date.
It is the case that a number of authorities have made plain that the time taken after arrival in Australia to make a protection visa application is a relevant matter for the Tribunal to consider (see Selvadurai v Minister for Immigration & Ethnic Affairs & Anor [1994] FCA 1105; (1994) 34 ALD 347 (“Selvadurai”), Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 at [10] (“Thuraisamy”) and SZSBR v Minister for Immigration and Border Protection [2013] FCA 1208 (“SZSBR (FCA)”) at [12] – [18], a matter on appeal from this Court).
Before the Court, the applicant submitted that in Selvadurai and Thuraisamy the “delay” was twenty months, and over two and a half years respectively. The argument was that in both those cases there were “unusual circumstances”, and the delay was lengthy.
The submission was that neither of these two cases defined “delay”, and the “changes” to the “45 day” requirement, in relation to permission to work, and its subsequent “cancellation”, were not put to the relevant Courts at that time. [I note that it was, in any event, not available to be put at that time.]
Again, the applicant’s starting point is to see and understand the matter of “delay” as the end point of the Tribunal’s relevant reasoning and findings. As set out above, that is not the case. I respectfully understand these authorities to stand for the proposition that it is legitimate and relevant for the Tribunal to assess the genuineness of an applicant’s claimed fear of persecution, including by having regard to the applicant’s conduct after arrival, in relation to seeking protection.
The applicant’s argument is posited on the proposition that the matter of delay was the central focus of the Tribunal’s reasoning. That is, the beginning and end of its impugned analysis.
However, as the Court made clear in Thuraisamy (at [10]) “…the existence of delay does not end the inquiry”. It is to the reasons for the “delay”, in the context of a claimed genuine fear of persecution, that the Tribunal’s analysis must be directed.
The applicant’s submissions did not appreciate that this was the focus of the Tribunal’s relevant analysis (at [22] at CB 109). The applicant’s argument did not go beyond the prescriptive view of the matter of delay with an emphasis on the lack of a “definition” for delay.
That also formed the basis of the applicant’s submissions in relation to the judgment of this Court in SZSBR v Minister for Immigration & Anor [2013] FCCA 847 and Justice Farrell’s judgment in SZSBR (FCA) on appeal. That is, that neither Court had had the benefit of the applicant’s current argument relating to the lack of definition of “delay”, and the claimed “abolition” of delay, as a relevant concept. Again that argument fails as it misconceives what the Tribunal has done and the statutory context within which its analysis occurred.
In this case, as in SZSBR, the period of making the application for the protection visa after arrival was some three months. As Justice Farrell pointed out, the Tribunal’s inference from the delay in SZSBR “might be regarded as harsh” (SZSBR at [16]).
However, even if that were to be said of the current circumstances, that does not establish the applicant’s ground, or otherwise reveal jurisdictional error. The Tribunal was entitled, as set out above, to consider the applicant’s conduct as it related to the assessment of the seriousness of her claimed fear of persecution. This was a relevant consideration. It was reasonably open to the Tribunal to proceed as it did. Ground one is not made out.
In ground two the applicant asserts that the Tribunal failed to deal with an integer of her claim to fear harm. In particular, that she had insulted “the Fijian Regime and the possible impact of that…in the consideration of whether she will be imputed with an anti-government profile”. She drew attention to the transcript of the hearing, annexed to the applicant’s affidavit of 10 March 2014 before the Tribunal at page 16:
“[Representative]: …you asked the applicant why she would be targeted whereas her sons are there and they have not had any serious incidents of late, the question to ask is when the second incident happened: why would they take her to the camp? Firstly. That there was no need to take her to the camp. They could have shrugged her off. And then secondly, why would they abuse her in the camp, lock her up and abuse her? Obviously, they were angry with her for whatever her involvement is.
[Tribunal]: Well, she told me that. She said she swore at them. That was her perception of why they were angry with her.
[Representative]: Exactly, member. Then I would like you to ask, if possible, if you feel all right to ask her what language she used, what were the words she used, how that offended them or the military authorities.
[Tribunal]: Well, I accept that. I accept that it would have offended them and got them cranky.
[Representative]: Well, I’m not sure, member, because she has not told you what words are used because, I mean, you abuse someone, then you can have - it depends upon the provocation that you - - -
[Tribunal]: All right. Well, I’m happy if she wants to tell me that. Your adviser has asked me to ask you more about that swearing at the officers, what words you used, what was said.
[Applicant]: As I was walked into a room and they started molesting me. I slapped one of the soldiers with open hand and he hit me back. I fell to the ground and - kicked me as well - and I said to them that they were a bunch of pigs and this country is being ruled by a pig.
[Tribunal]: And there’s some detail in your statement that they said something to the effect that these people don’t deserve to be Fijians or words to that effect, in your statement. Did that occur then?
[Applicant]: As I was on the ground or on the floor, the leader of the group said that I did not deserve to be a Fijian.”
I note also the subsequent assertions made at the hearing by the representative and the applicant to the Tribunal (lines 3 – 42 of page 17 of the transcript):
[Representative]: Member, the other issue is that her abuse of the military system and the political leader was of such concern to the military authorities to be discussed by a senior military officer in terms that he is going to report her to some head office or something like that. That’s what she said, I think. And this - - -
[Tribunal]: Where’s that? Is that in her statement?
[Representative] No, it’s not there. I think that is what she was trying to explain. Maybe if you feel all right, you can ask her what that information about the military officer was. I’m not sure if she explained that to you - - -
[Tribunal]: Is that something you’ve just heard her say?
[Representative]: Yeah, no, I heard her say but I’m not quite sure in what terms she explained. So if you wish to clarify that because I thought the discussion about - - -
[Tribunal]: I’ll ask her again. There is some detail of this in her statement. In the statement, you say - describing this incident - that the senior officer said that these kinds of people don’t deserve to be called true Fijians and asked the others to take you and detain you. Is there anything else you want to tell me about that?
[Applicant] And the question again, member, was?
[Tribunal]: Is there anything else you want to say about that? About what the senior officer said.
[Applicant]: And, yeah, he also mentioned - I did not mention this before that - the senior officer then said that my name is to be written down to be taken up to the authorities.
[Tribunal]: That isn’t in your statement and it isn’t in your statement either that you have heard through a relative whose husband is in the military that your name was being mentioned by the military. That’s not in your statement.
[Applicant]: Because the department did not - the delegate did not ask me those questions. I would have answered if they had asked me that.”
The applicant’s ground cannot be made out on the evidence before the Court. The Tribunal expressly rejected the applicant’s claim made before it that she had been the subject of discussion by the army and that her name had been recorded (“written down”) ([27] at CB 110).
The applicant submitted that the Tribunal did not expressly consider the words that she asserted that she had used when “insulting” the army officers. In particular, that the word “pig” being used against the head of the government was the “biggest insult that could have been given to the Fijian government”. The applicant submitted that the Tribunal “glossed over” her exact wording without considering its significance.
On the evidence before the Court, this emphasis on the word “pig” was not made to the Tribunal by either the representative or the applicant. It is not a matter for the Court now to consider a submission that should have been made to the Tribunal. This emphasis on a particular word now cannot be said to fall within the jurisdictional error identified in the authorities of a claim expressly made, or clearly arising, from the circumstances presented (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). On the evidence presented, and on a fair reading of the Tribunal’s decision, it considered the claim as it was put to it. As the Minister submitted, in the circumstances, the applicant seeks to challenge factual findings made by the Tribunal which were reasonably open to it (Wu Shan Liang). Ground two is not made out.
Conclusion
The grounds of the application and the submissions before the Court by the applicant do not show jurisdictional error in the Tribunal’s decision. The application should be dismissed. I will make an order accordingly.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 23 November 2015
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