SZVFF v Minister for Immigration

[2016] FCCA 2148

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2148

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal failed to consider a claim – no jurisdictional error – application dismissed.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), pt.12

Cases cited:

Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244

Applicant: SZVFF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2759 of 2014

Judgment of: Judge Nicholls

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Sydney

Delivered on: 15 July 2016

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 3 October 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2759 of 2014

SZVFF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 3 October 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”) made on 29 August 2014 which affirmed the decision of the delegate of the Minister to refuse a Protection (Class XA) visa to the applicant.

2. In evidence before the Court is the bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”).

Background

1. The following background can be ascertained from the Court Book. The applicant is a citizen of Fiji who arrived in Australia as the holder of a visitor visa on 3 June 2013. He applied for a protection visa on 30 August 2013 (CB 1 to CB 63).

2. The applicant claimed to fear harm on return to Fiji due to the “illegal government”, an inability to “meet the needs” of his family due to the economic circumstances in Fiji and that he had been psychologically and mentally affected by the new government. Further, that he feared harm due to an article he had written for the “Fiji Times” that caused the military to visit him at his home. The applicant also claimed that he would face harm on return because the government would “victimise” him for seeking refuge in Australia.

3. The delegate refused the application for the protection visa on 4 February 2014 (CB 64). The delegate found that while the applicant had provided “generally consistent information”, the delegate was not satisfied that the applicant had faced adverse attention from the authorities in Fiji, or that he would come to their attention in the future for either his political views or his application for protection in Australia (CB 78 to CB 79). Further, that the remainder of his claims, including economic hardship, did not establish that the applicant would face serious or significant harm on return to Fiji.

4. The applicant applied for review to the Tribunal on 28 February 2014 (CB 83 to CB 89). He was assisted by a registered migration agent. The applicant appeared at a hearing before the Tribunal on 21 August 2014 (CB 123) and provided a number of “letters of support” and country information to the Tribunal (CB 132 to CB 151).

5. On 13 August 2014, prior to the hearing before the Tribunal, the applicant’s representative submitted a Statutory Declaration made by the applicant. The applicant claimed he came from a “chiefly family” in Fiji ([19] at CB 104), that his family were Methodist and that he was a preacher in the Methodist church.

6. Further, that he had been involved with the “Soqoso Duavata ni Lewenivanua” (“SDL”), a political party with backing from the Methodist Church and the “Great Council of Chiefs”, that changed its name to the Social Democratic Liberal Party (“SODELPA”). He claimed that he was “active in the affairs of the SDL” and the SODELPA from its creation, and following the military coup, and knew the officials in the party.

7. He further claimed that following the military coup, he had been targeted because he spoke against the regime in his Church services between 2006 and 2013. In particular that he had been detained in 2006, 2007 and 2013.  He feared that he would not be able to speak about the “wrongdoings” of the regime if he returned. Further, that his “political profile” had grown following his comments in Fijian church communities in Australia and his participation in a protest in Canberra in July 2013.

8. The Tribunal affirmed the delegate’s decision on 29 August 2014. It had “significant concerns regarding the overall truth” of the applicant’s claims and the applicant’s “general reliability as a truthful witness” ([13] at CB 158).

9. The Tribunal’s concerns and findings can be summarised as follows:

   1)That, despite the applicant’s presentation as “an articulate man confident in multiple languages, including Fijian, English and Japanese”, the applicant had not advanced the “significant” claims in relation to his familial background and political involvement until 6 months after the date of the delegate’s decision to refuse the application for the visa.

   2)The Tribunal did not accept the applicant’s explanation for not providing the details to the delegate because he was concerned that it would be “leaked” to the Fijian authorities after advice “from a friend”. The Tribunal noted that it had raised with the applicant that this belief had been addressed by the delegate and gave him an opportunity at the hearing to comment.

   3)The Tribunal found “significant anomalies” in the applicant’s claims of past harm between his statements in his Statutory Declaration and his statements at the hearing before it ([21] at CB 160) . The Tribunal did not accept the applicant’s claim that he had “trouble recalling information” ([28] at CB 162 to [29] at CB 163).

   4)The Tribunal did not accept that the applicant had been involved in political activities in Australia. It found the applicant’s evidence to be “vague, lacking in detail and unconvincing” ([33] at CB 163 to CB 164).

   5)The Tribunal accepted that the applicant had “some involvement” with the SDL and SODELPA in Fiji, however found that he was not a “vocal or active participant in such activities” ([34] – [35] at CB 164). It relied on country information that “ordinary members” of Fijian political parties were not the subject of harm from Fijian authorities ([36] – [37] at CB 165).

   6)The Tribunal found that, with reference to the applicant’s own evidence and country information, believers in the Methodist faith were not restricted in their ability to practice. Further, that the applicant’s family lineage would not, with reference to his own evidence, put the applicant at risk of serious or significant harm ([38] at CB 165 to [40] at CB 166).

   7)The Tribunal accepted that the applicant had had a letter to the editor published in the Fiji Times. However, it found that the contents of that letter did not express any political opinion such as to give the applicant an adverse profile. Therefore, the applicant would not face serious or significant harm on return for this reason.

   8)The Tribunal found that, based on the applicant’s own evidence to it, his claim to fear harm due to having claimed asylum in Australia was no larger than “a sense of embarrassment”, and that country information did not indicate that the applicant would face more than “monitoring” on return ([42] at CB 167 to [47] at CB 168). Further, that the claims of economic hardship that he would face on return did not rise to a level of serious or significant harm ([51] at CB 169).

10. In all, the Tribunal found that the applicant would not face serious harm in the context of the Refugees Convention, or significant harm in the context of complementary protection, on return to Fiji.

Application Before the Court

1. The application before the Court is in the following terms:

   “Ground 1

   The Tribunal misapprehend the claim.

   Particulars

   The Refugee Review Tribunal found that the travel to Australia per se did not result in harm. The Tribunal failed to address persons associated with SDL / SODELPA in Fiji and that their continuing political activities may be imputed with

   
   

   anti-government political opinion.

   2. Ground 2

   The Tribunal failed to address the Applicant's social group.

   Particulars

   The Refugee Review Tribunal failed to address the Applicant's particular social group as being of persons opposed to the military government resident in Australia.

   3. Ground 3

   The Tribunal failed to address all the elements of complementary protection.

   Particulars

   The Refugee Review Tribunal erred in its assessment of complementary protection visa considerations.”

Before the Court

1. The applicant appeared in person before the Court today.  It was quite clear, as had been the case before the Tribunal, that he was fluent in English and he personally presented his oral submissions.

2. The application to the Court was made in October of 2014. The applicant appeared before a Registrar of the Court on two previous occasions, 5 November 2014 and 13 May 2015, when a number of orders were made for the conduct of the case.  In particular, I note that the Registrar made orders giving the applicant an opportunity to file any amended application, any evidence that he wanted to file by way of affidavit, and compelled the applicant to file and serve written submissions.

3. The applicant did not take up the opportunity of filing any amended application or any further evidence and has not filed any written submissions.  When asked to speak to the grounds of his application this morning, the applicant simply stated that he relied on the grounds of his application, and confirmed that he had not attempted to file any further material in this Court. 

4. I explained to the applicant that the role, function and powers of the Court differed to those of the Minister and the Tribunal. In effect, that the Tribunal was his final opportunity to satisfy a relevant authority that he should be granted a protection visa, therefore even if the Court were to accept that his claims for protection were true, the Court had no power to intervene to substitute its own findings for those of the Tribunal.

5. As I further explained to the applicant, the focus of today’s proceedings is, in effect, on one question. That is, whether in making its decision the Tribunal committed some legal mistake.  Or alternatively put, whether the Tribunal fell into some error in the exercise of its jurisdiction. 

6. The applicant confirmed that he had drafted the grounds himself and had not received any assistance in doing so. I requested that he address each of the grounds in turn and explain them. This was particularly necessary as it was not clear just what legal error the applicant was seeking to assert by way of his grounds.

7. At that point the applicant said that he wanted the Court to appoint a lawyer to assist him.  That application was refused.  First, there is no right of legal representation in matters of this type before the Court (Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702). Second, the applicant has had more than sufficient time and a reasonable opportunity to obtain any legal advice or legal representation. There was nothing from the applicant in making his application, and certainly no evidence from the applicant, that he had made any such attempts or that he was prevented from making any such attempts, in the well over a year and a half that has been available to him to prepare for this hearing, since he made his application to the Court.

8. Nor, importantly, could I see on the material that has been presented that this is an appropriate case for the Court to consider formally referring to the Bar Association for pro bono legal assistance under Part 12 of the Federal Circuit Court Rules 2001 (Cth). There was nothing presented by the circumstances of this case and nothing presented on the face of the grounds, to indicate that there was a question of law that was of such merit that the applicant would benefit from having pro bono legal representation. On that basis, the application for the Court to appoint a lawyer to assist the applicant was refused.

Consideration of the Grounds of the Application

1. Ground one asserts that the Tribunal “misapprehended” the claim.  The particulars, it must be said, do not provide sufficient clarity to understand exactly what claim the Tribunal is said to have misapprehended.  It is also unclear, from the ground itself, whether the applicant really intends to complain that by having misunderstood his claim, the Tribunal failed to properly consider it, which, if it could be made out, may indeed, reveal jurisdictional error.

2. Before the Court the applicant explained that his complaint was that the Tribunal did not accept the claim that he would face harm if he returned to Fiji because of his association with the SDL and SODELPA in Fiji.  A number of elements of the applicant’s claims are referred to in the particulars. These are his claimed association with SDL and SODELPA in Fiji, his claim of his continuing political activities and profile and his travel to Australia.

3. On any plain, let alone a fair reading of the Tribunal’s decision record, the Tribunal identified, addressed and considered all of these elements of the applicant’s claims in its analysis.  The claimed association with SDL/SODELPA is at [30] (at CB 163) and [34] (at CB 164) to [37] (at CB 165) of the Tribunal’s decision.  The Tribunal found he was an ordinary supporter of these groups but did not have an adverse profile that would attract serious or significant harm, as he had claimed.  As I said earlier, he claimed to have such a profile because he had spoken out against the current regime in Fiji and the Tribunal found he had not been truthful in this regard.

4. As to the claim to fear harm because he had travelled to Australia, the Tribunal addressed the applicant’s claim to fear harm on return to Fiji because he would be perceived to have sought asylum in Australia.  The Tribunal dealt with this claim at some length ([42] at CB 167 to [47] at CB 168). 

5. In his submissions, the Minister suggests that it appears that the applicant’s complaint is that the Tribunal failed to consider these claims cumulatively.  If that is the complaint or, if that is the complaint that can be understood from the ground, then the Tribunal’s analysis and findings at [47] (at CB 168), in particular, and then [54] (at CB 169) and [55] (at CB 169 to CB 170) provide the plain answer. That is, the Tribunal did consider all of the applicant’s claims, not just those three elements that are identified in ground one on an individual and then a cumulative basis. 

6. The Tribunal’s findings in relation to aspects of these claims, and it must be said, all of the applicant’s claims, were reasonably open to it on what was before it. The Tribunal gave cogent reasons for its findings, which were probative of the evidence and material before it.  It is clear, as the applicant confirmed through his explanation of the ground today, that, in reality, what the applicant’s ground seeks to convey is disagreement with the Tribunal’s factual findings in relation to his membership of this group, and his activities, and his return to Fiji as a failed asylum seeker.

7. In essence, by his ground, the applicant seeks impermissible merits review. As is well-established, this Court cannot entertain any application to review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Ground one, therefore, lacks merit and is not made out.

8. Ground two asserts that the Tribunal failed to address what is said to be the applicant’s “social group”.  The particulars identify this as persons resident in Australia and opposed to the Fijian military government.

9. It is the case that a failure to consider a claim expressly made or clearly arising or a failure to consider a substantial, clearly articulated argument may, indeed, reveal jurisdictional error (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

10. The difficulty for the applicant is that his ground does, and his particulars do not, point to any part of the evidence before the Court where it can be said he made such a claim. That is, a claim to be a member of a particular social group, and that he would suffer harm as a result of such membership.

11. No such argument, as the particulars appear to propose, is evident anywhere in the material before the Court.  Today, when the applicant was asked the question where he had raised this matter of the particular social group, he referred to [14] of the Tribunal’s decision record and, in particular, to the Tribunal’s references there to the applicant’s involvement with the SDL, SODELPA or the Fiji Democracy & Freedom Movement, another political group in Fiji.  Paragraph 14 (at CB 158) is that part of the Tribunal’s decision record where it sets out the applicant’s claims. In particular, it noted that the applicant’s claims had “expanded and developed significantly over time” and that these were matters raised in his statutory declaration.

12. However, in light of what appears to be the complaint in ground two, [14] (at CB 158) does not assist the applicant.  It is clear that what the Tribunal reported and recorded at [14] (at CB 158) was, in my view, an accurate reflection of the applicant’s claims as made in his Statutory Declaration.  That is, simply, that he had been a member of, and indeed, had claimed to be an “active” member of these organisations. 

13. The material before the Court reveals that the applicant, who was represented by a migration agent before the Tribunal, made a number of claims specific to, and relevant to, him as an individual, rather than as a member of a particular social group, as that concept is understood in law and as it flows from the UN Refugees Convention.  The Tribunal addressed all of the applicant’s claims as they were put to it, both on an individual and cumulative basis.

14. Further, the particular social group now advanced by the applicant in his particular to the ground is predicated on the assertion that the applicant had been outspoken against the Fiji military while in Australia.  It is clear from the Tribunal’s decision record that the Tribunal dealt with this claim.  The Tribunal specifically addressed the applicant’s claimed conduct in Australia, and in Fiji, that demonstrated what he said was his vocal opposition to the military in Fiji (see from [30] and following).

15. The Tribunal found that he had not been vocal in speaking out against the military while in Australia.  Once the Tribunal rejected this underlying factual premise, as expressed in the applicant’s particular, then it was not necessary for it to then go on and consider whether the applicant belonged to any particular social group, dependent on this premise. 

1. I also note that the applicant also initially claimed to fear harm for reason of being a failed asylum seeker if he were to return to Fiji. However, on the only evidence available to the Court of what occurred at the Tribunal hearing, that is, the Tribunal’s own references in its decision record to the hearing, the Tribunal records that the applicant confirmed that he did not have such a fear but would feel “embarrassed” if he were to return in the circumstances.

2. The Tribunal found that this did not amount to serious or significant harm and, in these circumstances, again, it was not necessary to go on to consider the existence of any particular social group of failed asylum seekers.  I note that in the absence of any evidence of what might otherwise have occurred at the hearing, it is not open for the Court to speculate as to any other possible evidence that may or may not have been given.  The Court must, it is trite to say, proceed on the evidence that is presented to it. The applicant had the opportunity to provide evidence, for example by way of a transcript of the hearing, but did not do so.

3. It is clear, again, that ground two is another attempt to express dissatisfaction with the Tribunal’s findings, albeit an attempt which does not have any basis or does not arise from the evidence presented to the Court.  Ground two, therefore, is not made out. 

4. In relation to ground three, it must be said, I agree with the Minister’s submissions that, absent meaningful particulars, ground three is meaningless.  It may be that what is intended by the applicant in relation to ground three is some complaint that the Tribunal did not properly consider the complementary protection criterion.

5. If that is the case then that must be rejected.  The Tribunal made findings of fact in relation to the applicant’s claims and the factual underpinnings of those claims.  The Tribunal made extensive findings of fact adverse to the applicant’s claimed factual account of what he said occurred and would occur if he were to return to Fiji.  That is, based on the accumulation of its concerns about the applicant’s evidence, the Tribunal rejected key aspects of the applicant’s claims.  These findings, including its adverse credibility findings, were all reasonably open to the Tribunal on what was before it.

6. The Tribunal then separately considered those findings as against, and in light of, both of the criteria for the grant of the protection visa as set out in s.36(2)(a) and s.36(2)(aa) of the Act. That is, as against the Refugees Convention and as against the complementary protection obligations.

7. Before the Court today, the applicant asserted that he had been vocal in church groups and that his complaint really was that the Tribunal should have found that the complementary protection criterion was met. Given the Tribunal’s factual findings and its analysis, to which I’ve already referred, again, it is clear that the applicant seeks to express dissatisfaction with the Tribunal’s findings and its conclusion that no legal error is evident. 

Conclusion

1. In all, therefore, none of the grounds advanced by the applicant, and nothing that the applicant has said today reveals jurisdictional error on the part of the Tribunal. Nor can I otherwise see jurisdictional error in the Tribunal’s decision arising from the evidence that has been put before the Court. Absent such error, the appropriate course for the Court today is to make an order dismissing the applicant’s application.  I will make that order.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 19 August 2016