SZVFH v Minister for Immigration

[2017] FCCA 640

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVFH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 640

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to take material evidence into account, failed to make an inquiry and reached a conclusion which was unreasonable.

Legislation:

Migration Act 1958, ss.36, 91R, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123
SZTDD v Minister for Immigration & Border Protection [2016] FCA 136

First Applicant: SZVFH

Second Applicant: SZVFI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2773 of 2014

Judgment of: Judge Cameron

Hearing date: 14 March 2017

Date of Last Submission: 14 March 2017

Delivered at: Sydney

Delivered on: 7 April 2017

REPRESENTATION

Counsel for the Applicant: Mr A. Silva

Solicitors for the Respondents: Ms A. Wong of Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2773 of 2014

SZVFH

First Applicant

SZVFI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of Fiji who arrived in Australia on 22 July 2013 as the holder of a tourist visa.  On 22 October 2013 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in Fiji because of his political opinion.  The second applicant, who is his wife, was included in that application as a member of his family unit.  On 14 April 2014 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the first applicant’s claim for protection.  As summarised by the Tribunal, in his protection visa application the first applicant claimed that he had been abused and harmed by the Fijian army because he was a strong supporter of the United Fiji Party, Soqosoqo Duavita ni Lewenivanna (“SDL Party”), and was against the current Fijian government.  He claimed that he had been beaten and detained by the army on three occasions.  He feared that if he returned to Fiji the army, the Fijian regime and the current Fijian Prime Minister would abuse, mistreat, detain or kill him.

2. The first applicant elaborated on his claims in a statutory declaration dated 20 August 2014 which he provided to the Tribunal.  He claimed that:

   a)he had worked as a driver and bodyguard to the CEO of Fiji’s Ministry of Trade and Commerce.  On 5 December 2006 (when the Fijian military coup occurred) all the CEOs were asked to step down from their roles and all ministry cars were required to be surrendered.  While he was taking the ministry car for service, he was attacked by six army officers and taken to an army barracks where he was forced to crawl.  He was released after pleading for mercy;

   b)on 3 April 2009, while he and members of his family were on their way to their home island to install a new chief, they were stopped by police and army officers.  All the male members of the family were arrested.  He was taken to a police station where he was questioned and ill-treated;

   c)he had been to Afghanistan twice and to Iraq four times to work as a security officer.  Each time he returned to Fiji he was questioned and searched;

   d)on 1 July 2013, after he had attended a meeting with the former Prime Minister of Fiji, he was arrested by army personnel.  He lost consciousness when he was attacked and a passing cab picked him up and took him home; and

   e)as a result of the harm he had faced, he decided to leave Fiji and travel to Australia. 

3. The first applicant provided the following documents in support of his application:

   a)a letter dated 30 July 2013 signed by the former Prime Minister of Fiji.  The former Prime Minister stated that the first applicant was seeking protection because of the “extremely difficult situation in Fiji where jobs are simply not available to support families” and that the first applicant’s skills would make a great contribution to Australia.  He also stated that as the former driver of the Permanent Secretary of Fiji’s Ministry of Commerce and Industry, the first applicant could be under constant surveillance by military personnel;

   b)a newspaper article referring to members of a clan being stopped from boarding a vessel to attend a ceremony to install a chief;

   c)a certificate dated 12 June 2016 certifying that the first applicant held a black belt in martial arts and a photograph of the applicant and other people in martial arts clothing; and

   d)newspaper articles on Fiji and a statutory declaration made by an Australian citizen of Fijian descent who claimed to have been assaulted by the Fijian army on a visit to Fiji.

4. The first applicant also provided to the Department a number of medical documents and physiotherapist reports, some of which stated that he was receiving treatment in Australia for neck, shoulder and lower back pain which he had sustained in Fiji.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the first applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal found that the first applicant had not been employed as a bodyguard but did accept that his martial arts skills might have been perceived as being advantageous in his role as a driver.  It accepted that he had been a driver in the Fijian Ministry for Commerce, that he was a supporter of the SDL Party and that as a result of his position as a driver he would have been perceived as an SDL supporter.  However, the Tribunal did not accept that the first applicant had ever been questioned, arrested, detained or ill-treated by the military in Fiji.  It also did not accept that any of the incidents of harm referred to by the first applicant had occurred or that he was of interest to the Fijian military.  In that regard:

   a)the Tribunal noted that certain aspects of the first applicant’s evidence concerning his claimed attacked while taking the ministry car for service were inconsistent.  In particular, in his statutory declaration he claimed that the incident occurred on 5 December 2006 while, at the Tribunal hearing, he claimed that it occurred on 1 January 2007;

   b)the Tribunal noted that the news article the first applicant had provided in support of his claim that he and other male members of his family had been arrested while on their way to install a new chief was generic and did not refer to him;

   c)the Tribunal noted that the letter from the former Prime Minister of Fiji did not mention any of the incidents of harm the first applicant claimed had occurred and referred to the first applicant having skills which would make a contribution to Australia.  The Tribunal did not accept the first applicant’s explanations for the failure of the letter to refer to his claimed incidents of harm.  Whilst it had doubts about the letter, the Tribunal accepted that it was genuine but found that it did not corroborate the first applicant’s claims of harm as it did not make reference to any alleged incidents of harm;

   d)the Tribunal noted that the second applicant gave evidence at its hearing, saying that military men had attended their house in 2007, that she and her family had had to move because people had been looking for them and that she had seen injuries on the first applicant but he had not told her what had happened to him.  The Tribunal noted that one of the first applicant’s cousins also gave evidence that he had been arrested with the first applicant when they were on their way to install their chief and that he had been granted protection in Australia on the basis of that incident.  The Tribunal did not consider the second applicant or the first applicant’s cousin to have been independent witnesses, finding that they had a vested interest in the outcome of the review.  It found that their evidence did not overcome other difficulties in the evidence before it and therefore did not give their evidence much weight.  The Tribunal further found that without knowing all the facts and circumstances surrounding the grant of a protection visa to the first applicant’s cousin, it could not give any weight to that matter;

   e)the Tribunal found that the first applicant’s repeated returns to Fiji from Iraq and Afghanistan between 2011 and 2013, after he claimed he had been harmed, were not consistent with his claimed fear of harm in Fiji.  It also noted that the first applicant had three children still living in Fiji but there was no evidence of any harm, or concerns of any harm, befalling them;

   f)the Tribunal noted that the first applicant applied for his protection visa on 22 October 2013, two days before his tourist visa was due to expire.  It noted that he claimed that he had not intended to apply for protection but that on 10 October 2013 the second applicant told him that the military had attended their home looking for him.  The Tribunal was not convinced by that explanation and found that the first applicant’s delay in lodging his protection visa application raised doubts about his claims of harm and the genuineness of his fear; and

   g)the Tribunal noted that the first applicant had offered to remove his clothing to show it scars he alleged had been caused by the assaults he claimed had occurred.  It noted that it declined his offer because it was not a medical expert and would not have been able to assess the cause of any scars he bore.  It accepted as plausible that the first applicant was scarred but it was not satisfied that any such scars had been caused by the incidents he claimed had occurred.  The Tribunal also noted that it had considered the medical evidence the first applicant had provided to the Department.  It accepted that he suffered from cervical, shoulder and lower back pain but, on the basis of the information before it, it did not accept that the pain was due to any assault or the claimed incidents of harm.

3. The Tribunal noted that at its hearing the first applicant’s cousin claimed that the first applicant had attended an anti-Fijian government demonstration in Sydney a week before its hearing. It noted that when it questioned the first applicant about this, he stated that he had attended the demonstration to voice his opinion and because he had suffered a lot. The Tribunal noted that apart from being a ministerial driver, the first applicant had not claimed that he had ever been involved in SDL activities in Fiji or that he had refrained from engaging in SDL activities in order to avoid harm. Given the first applicant’s limited involvement with the SDL in Fiji and his lack of involvement in Australia, the Tribunal found it odd that he had chosen to attend the demonstration a week before its hearing. It also noted that the first applicant’s failure to raise the issue himself suggested that the demonstration had had limited personal significance to him. Whilst accepting that it was plausible that the first applicant had attended the demonstration, the Tribunal was not satisfied that he had done so otherwise than for the purpose of strengthening his claim to be a refugee. It therefore disregarded that conduct pursuant to the then-s.91R(3) of the Act.

4. The Tribunal also had regard to country information which indicated that low level SDL supporters such as the first applicant were not likely to be subjected to harm in Fiji.  It noted that it had considered the newspaper articles on Fiji and the statutory declaration from the Australian citizen of Fijian descent provided by the first applicant but, based on country information, it found that the first applicant would not face serious or significant harm in Fiji for being an SDL supporter.

Proceedings in this Court

1. In their amended application the applicants alleged:

   1.The Tribunal made jurisdictional error in that it made its decision without (a) taking a relevant matter into consideration, (b) inquiring into the circumstances of the applicant’s cousin’s grant of protection visa which is relevant to a critical claim of the applicant.

   Particulars

   In dismissing the claim that the applicant was detained on 3 April 2009 the Tribunal failed to take into consideration the applicant’s cousin’s oral evidence to the Tribunal that he was with the applicant and he was also detained. See [13], [21], [24] & [29].

   The Tribunal failed to inquire from the applicant’s cousin who was a witness before the Tribunal about the factual circumstances of his case and especially the claimed incident on 3 April 2009 which formed the basis of the cousin’s successful Tribunal application and protection visa.

   2.The Tribunal made jurisdictional error in that it ignored a relevant real evidence about the serious harm suffered by the applicant in Fiji

   Particulars

   Although the applicant volunteered to show the scars resulting from the serious harm the applicant suffered in Fiji, the Tribunal refused to view that but made a negative finding about that. See [27].

   Although medical evidence is for the medical professionals the Tribunal had to view the real evidence to form a view about the applicant’s claims.

   3.The Tribunal made jurisdictional error in that in considering whether the applicant was involved in demonstration in Sydney in 2014 against Mr. Bainimarama it failed to take a critical matter into consideration.

   Particulars

   In [31], the Tribunal in making a finding that “the Tribunal was not satisfied that the applicant has engaged in the conduct otherwise than for the purpose of strengthening his claims to be a refugee” the Tribunal failed to consider that the applicant himself did not volunteer that information to the Tribunal as a means of strengthening his case.

Ground 1

Sub-ground (a)

1. In relation to their allegation that the Tribunal had failed to take account of the first applicant’s cousin’s evidence concerning the authorities’ detention of the first applicant and his family members when they sought to travel for the installation of a new chief, the applicants submitted :

   At [24] the Tribunal stated that:

   The applicant’s cousin gave evidence that he obtained protection on the same basis.  Without knowing all the facts and circumstances surrounding the grant of the protection visa to the cousin, the Tribunal does not give weight to the matter.  The Tribunal recognizes that consistency in decision-making is important in the administration of justice, nevertheless each case must be assessed on its own merits.

   The Tribunal thus has given no weight to the cousin’s evidence that he was detained in the 3 April 2009 incident along with the applicant.

2. The applicants’ contention was that the Tribunal’s attribution of no weight to the evidence of the first applicant’s cousin was “equivalent to not taking that evidence into consideration … ”.  They also submitted that the Tribunal had been wrong to conclude that the cousin had a vested interest in the applicants’ application and that the Tribunal’s conduct at its hearing indicated that it had been uninterested in the cousin’s evidence.

3. I do not accept the applicants’ principal contention.  The Tribunal’s reasons at paras.22-24 record the consideration it gave to the first applicant’s claim to have been prevented from travelling for the installation of the new chief but found the evidence advanced in support of that claim, including the cousin’s evidence, to be unpersuasive.  It is apparent from that discussion that the Tribunal considered the cousin’s evidence.

4. Moreover, the applicants’ submission misrepresented the Tribunal’s findings.  At para.23 the Tribunal stated that it had not accorded the cousin’s evidence “much weight” because it considered that he had a vested interest in the outcome of the review and his evidence did not overcome difficulties it perceived in the first applicant’s evidence, summarised above at [9(a)-(c)].  It did not accord that evidence no weight.  What was given no weight was what the Tribunal mistakenly described in para.24 of its reasons, quoted above at [13], as the cousin’s evidence concerning why he had been afforded protection in Australia.  In fact that evidence was given by the first applicant: p.11 of the transcript of the Tribunal hearing annexed to the first applicant’s affidavit sworn on 30 November 2014.  That mistaken attribution was not a matter of any significance to the outcome of the review and the conclusion reached in relation to the evidence in question, based on the fact that the Tribunal did not know all the facts and circumstances surrounding that matter, was unexceptionable.

5. I also reject the applicants’ secondary contentions.  Because of the relationship between the first applicant and his cousin it was open to the Tribunal to conclude that the cousin had a vested interest in the success of the applicants’ visa application, if only out of familial sentiment.  Consequently, even if that was a mistaken conclusion, it was an error within jurisdiction.  Further, regardless of how the applicants might wish to characterise the Tribunal’s interest at its hearing in the account given by the first applicant’s cousin, the fact is that the Tribunal’s reasoning discloses that his evidence was given consideration which was proper, genuine and realistic, involving an active intellectual process, and so was not affected by jurisdictional error:  Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; Minister for Immigration & Citizenship v Khadgi (2010) 190 FCR 248.

Sub-ground (b)

1. The applicants submitted that the Tribunal failed to ask the first applicant’s cousin about the incident when he and the first applicant had, they claimed, been prevented from travelling for the installation of the new chief.  The applicants also submitted that the Tribunal should have asked more questions of the cousin when he gave evidence to it, in particular, on the nature of the first applicant’s role or involvement in the incident such that it would have been enabled to make an informed decision about whether the first applicant had been there or not.

2. The relevance for the Tribunal of the event in question was whether the first applicant had been present at the particular incident.  The cousin’s evidence was clear and to the effect that he had been:

   Tribunal:I’m mindful of the time, so is there anything else you want to say?

   Witness:The second incident that happened was when we were forcefully and retained [sic] from the wharf when we were on a trip to our village to install our chief.

   Tribunal:You were with him then?

   Witness:I was with him.

   Tribunal:You were there.

   Witness:In 2009.

1. The applicants’ case seems to be that the Tribunal should have sought from the cousin a repetition or an elaboration of this evidence.  However, it had no obligation to do that.  The Tribunal has no general duty to inquire.  When it is suggested that the Tribunal should have made an enquiry which it did not make, it is important to ask whether the failure to make the identified enquiry supplied a sufficient link to the outcome of the review as to constitute a failure to review. In circumstances where the evidence does not suggest that further enquiry by the Tribunal would have yielded a useful result, the Tribunal does not err if it does not make such an enquiry: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [26]; SZTDD v Minister for Immigration & Border Protection [2016] FCA 136.

2. Having alleged that the Tribunal should have asked more questions of the cousin than it did, it was necessary for the applicants to make out all the elements of the SZIAI test, including the “sufficient link” element.  However, no evidence was adduced to show what information would have been gleaned if the Tribunal had made the enquiries postulated by the applicants in their submissions.  As a result, there is no basis to conclude that the failure to make the postulated enquiries supplied a sufficient link to the outcome of the review that it constituted a failure to review and so jurisdictional error.

Ground 2

1. The applicants alleged in the second ground of their amended application that the Tribunal erred by failing to inspect the first applicant’s scars when it was invited to do so.  In this connection they submitted:

   When an applicant claims to have been harmed and claimed to have a scar.  [sic] The evidence that can be viewed from the scar is not just medical evidence but includes whether the scar is consistent with the position and [sic] claimed by the applicant.  Further even where a medical expert provides evidence it is the Tribunal that is the ultimate decision maker in deciding whether to accept the evidence of the medical expert.

2. In addresses the applicants widened this submission to relate to “scars and bruises”.  This reflects the invitation or request which the applicants’ representative made to the Tribunal at its hearing.

3. In para.27 of its decision record the Tribunal explained why it did not inspect the first applicant’s scars:

   The applicant offered to remove clothing items to show the Tribunal scars alleged to have been caused as a result of the claimed assaults, the Tribunal declined noting that as the Tribunal is not a medical expert, it would not be in a position to assess the cause of any scars.  The Tribunal accepts as plausible that the applicant has scars …

4. At the hearing the Tribunal referred to both the claimed scars and the claimed bruises:

   Representative:         Except that he just mentioned to me that he wanted to show you all the bruises, you know, that he had occurred, you know, during the brutal kicks or whatever from the army also.

   Tribunal:I will comment on that. Could you just interpret what the adviser said please. I’m not a doctor. I’m not an expert. Even if you have bruises or scars on your body, I wouldn’t be able without expert evidence to form a view about how they happened.  …

   …

   First applicant:         Will you be satisfied if I reveal to you some scars that I have from some injuries?

   Tribunal:As I said, I am not a doctor. I am not an expert.  Even if you show me scars, I wouldn’t be able to be satisfied how they happened.

5. Contrary to the applicants’ submission, the conclusions which they would have wished the Tribunal to draw from a consideration of any scars or bruises on the first applicant’s body required the Tribunal to have an expertise which it did not have.  It therefore did not err by declining, for the reasons it gave, the opportunity to view such scars or bruises as the first applicant bore.

Ground 3

1. The third ground of the amended application relied on the former s.91R(3) of the Act which has subsequently been repealed. At the time of the Tribunal’s decision, the sub-section provided:

   91R Persecution

   …

   (3)For the purposes of the application of this Act and the regulations to a particular person:

   (a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

2. The applicants noted that they had not claimed to fear persecution by reason of the first applicant’s participation in an anti-Fijian government demonstration in Sydney a week prior to the Tribunal’s hearing and that it had been the first applicant’s cousin who had raised the matter.  They questioned how the Tribunal could conclude that the first applicant had only participated in the demonstration in order to make a sur place claim when he had made no claim in relation to it at all.  The applicants submitted that the Tribunal had failed to take account of that fact and, further, that its conclusion that it was not satisfied that the first applicant had participated in the demonstration otherwise than for the purpose of strengthening his claim to be a refugee was unreasonable.

3. Two issues arise out of the third ground of the amended application.  The first is whether the Tribunal failed to consider material which the applicants allege it was obliged to consider, namely that the applicants had not made a claim in relation to this conduct.  The Tribunal relevantly said in its reasons:

   The Tribunal finds it odd that given the limited involvement in SDL activities and despite being in Australia for almost a year without any involvement in the SDL until a week before the hearing, the applicant chooses to attend a demonstration in Sydney.  The Tribunal is of the view that it is also odd that the applicant failed to mention this claim in his oral evidence, suggesting limited personal significance.  Given those comments and in consideration of the evidence as a whole, whilst the Tribunal accepts as plausible that the applicant had attended a demonstration in Sydney in August 2014, the Tribunal is not satisfied that the applicant has engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.

   Plainly, the Tribunal did take account of the fact that the applicants had not raised the issue themselves.

4. The second issue is whether, even if the Tribunal did consider that material, its related conclusion was one which no reasonable decision-maker would have reached.  It appears that the Tribunal’s lack of satisfaction that the first applicant had participated in the demonstration otherwise than for the purpose of strengthening his claim to be a refugee was based on the fact that although the demonstration did not, objectively, appear to have had much significance for the first applicant, he nevertheless participated in it one week before the hearing.  It was open to the Tribunal to query the first applicant’s motive to participate, so shortly before the hearing, in a demonstration of no apparent significance to him and to conclude from those facts that he did so to manufacture a sur place claim.  It was open to the Tribunal to reason in this way, even if not every decision-maker would have.  Consequently, the Tribunal’s lack of satisfaction that the first applicant had participated in the demonstration otherwise than for the purpose of strengthening his claim to be a refugee was not affected by jurisdictional error.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 7 April 2017