SZVZQ v Minister for Immigration - [2016] FCCA 2895

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZQ v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2895

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611;

[2010] HCA 16

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013]

HCA 18

Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50;

[2014] FCAFC 1

SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452; [2015] FCAFC 121

Applicant:

SZVZQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 110 of 2015

Judgment of:

Judge Barnes

Hearing date:

27 October 2016

Delivered at:

Sydney

Delivered on:

27 October 2016

REPRESENTATION

Applicant:

In Person

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The name of the Second Respondent be amended to Administrative Appeals Tribunal.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 110 of 2015

SZVZQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the former Refugee Review Tribunal dated 22 December 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Jordan, arrived in Australia in September 2013 and applied for protection in November 2013. He made protection claims in his protection visa application. He submitted a document which indicated that the “Al Fadeela Political Party” certified that he was a member from a specified date in 2010.
The Applicant attended an interview with the delegate. His application was refused. He sought review by the Tribunal. He attended a Tribunal hearing.
In its reasons for decision, the Tribunal set out the evidence before it and the claims made by the Applicant, including his initial claim that there were several reasons he left Jordan: first the war in Syria; second economic conditions in Jordan and being unable to provide for his family; and that he was a member the Al Fadeela Political Party. It recorded that he claimed that he had organised a few “peaceful public riots” and began to feel he was “targeted”. He claimed he had received verbal threats from government officials and was beaten by the police during some riots, that he had been denied medical treatment and that he feared he would be further targeted and persecuted and believed he had been put on a “black list” because of his involvement with the opposition and also that he would be unable to find employment and provide for his family if he returned to Jordan.
In his interview with the delegate the Applicant also claimed that he had reported an illegal shipment of cigarettes and other corrupt activities to the authorities and that the person he reported had found out who had reported him and was now looking for him.
The Tribunal described the discussion at the hearing of several matters, including why the Applicant had come to Australia (in response to which the Applicant had said he came to Australia because he had depression, because of his mental health, to save his life, and because of his political activities), his fears on returning to Jordan, his past and intended future participation in Al Fadeela, what the party did, and various other issues, including about the protests in which he claimed he had been involved.
The Tribunal recorded that it put matters of concern to the Applicant and gave him the opportunity to comment, in particular on aspects of the delegate’s conclusions and inconsistencies in his evidence.
In its findings and reasons, the Tribunal accepted that the Applicant was a citizen of Jordan.
It stated that it had taken into account that the Applicant regularly attended a psychologist, but also that now, after 12 months, he felt better.
The Tribunal found that generally the Applicant was an unreliable witness, although it accepted some specific claims. It found that his account was not assisted by vague and generalised evidence and inconsistencies between the stated reasons for the claim to protection in his application, his evidence to the delegate and his evidence to the Tribunal. It gave examples, observing that, despite attending daily meetings of the party to discuss corruption, the Applicant was not able to tell the Tribunal what the party planned to do about this issue, except to raise their voices to improve awareness. In addition, he could not remember any of the party slogans appearing on banners and did not know the name of the leader of the party.
The Tribunal also had regard to the fact that he told it the party had between 600 and 1000 members, whereas he had told the delegate there were 18 members. It rejected the Applicant’s explanation that he was telling the delegate that he knew 18 other members on the basis that this was not supported by what he told her. It also recorded that while he had told the delegate that his role for the party was being a “negotiator”, he had not mentioned this at all to the Tribunal.
The Tribunal also had regard to exaggerations by the Applicant, including the fact that he told it he had participated in five protests, but when asked for details could only persuasively describe two. In addition, he had said that he had been discriminated against in employment because of his membership of the party, but the only example he could give was the possible refusal of a place for his son in a university course.
The Tribunal did accept the Applicant’s claims about where and when he was born, his education and his work in the Jordanian police force.
It then addressed each of his specific claims. It did not accept the Applicant left Jordan because of the war in Syria. It had regard to the fact that in the Tribunal hearing he had barely referred to the war in Syria generally, or specifically as a reason for leaving Jordan, that he had never mentioned anything about his home being in proximity to bombing, and at all times had emphasised that he left Jordan because of his mental health. In any event, the Tribunal did not accept that the Applicant faced harm if he returned to Jordan because of the war in Syria. It had regard to the fact that the only reasons the Applicant advanced to the Tribunal for fearing to return to Jordan were retribution from the GID (the Jordanian intelligence agency) or from the unnamed smuggler.
The Tribunal also considered the Applicant’s claims about economic difficulties notwithstanding that in the hearing he had not referred at all to being unable to provide for his family as a reason for leaving Jordan. It accepted that there were economic difficulties for Jordan generally and referred to cited country information, finding that Jordan had few natural resources, its economic fortunes had been undermined by regional instability and it was heavily dependent on foreign aid. However it did not accept that the Applicant faced “serious harm amounting to persecution” in the reasonably foreseeable future if he returned to Jordan because of the economic conditions, and indeed did not accept that he “faces harm” if he returned to Jordan because of the economic situation, having regard to the fact that the only reasons he advanced to the Tribunal for fearing to return to Jordan were retribution from the GID or the unnamed smuggler.
The Tribunal then considered the Applicant’s claims about membership of Al Fadeela. It noted the absence of country information in support of these claims and its inability to find any reports referring to the Al Fadeela Political Party, although it had found a report that referred to a similarly named political party. Nonetheless, given the membership document the Applicant had submitted, the Tribunal accepted that there was such a party in Jordan and that the Applicant may have participated in its activities. However, it found that such party appeared to have virtually no public profile. It also had regard to information indicating that, apart from the main opposition parties, none of the various political parties in Jordan played any real role in politics because of the lack of organisation and clear political platforms.
The Tribunal was of the view that the lack of a profile for the Al Fadeela party militated against a finding that the Applicant was targeted by the GID because of his membership of that party. The Tribunal also found that the Applicant occupied no leadership position or other position of authority in the party and that he had only the most vague and generalised idea of the party’s activities. It accepted that he participated in two protests only. Based on his evidence, it found that neither the Applicant nor Al Fadeela organised any protests, but that some of the individual members, including the Applicant, joined marches or protests organised by others as they went by. It accepted that the Applicant was detained and confined after the second protest in September 2012, but did not consider that this was because of his membership of Al Fadeela. It did not accept that he was a figure of any interest to the authorities or the GID, in particular after his release because, according to him, he was able to participate in protests and had no further encounters with the police or GID before he came to Australia. In the absence of any credible evidence, it did not accept that members of the party were discriminated against.
The Tribunal did not accept the Applicant’s account of a fear of the unnamed smuggler coming after him for retribution, considering this account to be farfetched, as his evidence was superficial and unconvincing. It found that virtually no details had been given of the incident and considered it unlikely in the extreme that the unnamed smuggler would seek to harm the Applicant on return. The Tribunal considered, but did not accept, the Applicant’s claim that he had been placed on a “black list” and would be detained on return, in circumstances where he had travelled to Australia on his own passport and had not been stopped for questioning at the airport on departure. The Tribunal stated that as it considered he was not of interest to the authorities, it did not accept that the Applicant had been placed on any black list and would be detained on return.
In summary, considering the claims individually and cumulatively, the Tribunal found there was not a real chance the Applicant would suffer serious harm amounting to persecution by reason of the war in Syria, the economic difficulties in Jordan, or because of his membership of the Al Fadeela Political Party. It found that he did not meet the Refugees Convention criterion.
The Tribunal also considered whether, in light of its findings, the Applicant met the complementary protection criterion, but concluded that because of the findings it had set out, it did not accept there was a real risk of the Applicant suffering any form of significant harm if he returned to Jordan. The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed in this Court on 16 January 2015. There is one ground in the application. It is as follows:
The Member of the Refugee Review Tribunal misunderstood my fear of persecution and failed to accept that my suffering and what happened to me amount to serious harm.
There are no particulars to this ground. I gave the Applicant the opportunity to address this ground in oral submissions. He reiterated his claim to have been persecuted and to be wanted in Jordan. He conceded that his concern was that he did not agree with the Tribunal conclusion, rather than an assertion that the Tribunal had misunderstood his claims. Moreover, there is nothing in the material before the Court to support a contention that the Tribunal misunderstood or, indeed, failed to consider any integer of the Applicant’s claims.
In that respect I note that the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. It appears on the material before the Court that the Tribunal considered all the claims made by the Applicant in his protection visa application, before the delegate and as elaborated on at the Tribunal hearing. In the absence of particularisation, there is nothing to establish that the Tribunal misunderstood the Applicant’s claims in a manner constituting or giving rise to jurisdictional error.
Insofar as the Applicant simply disagrees with the Tribunal conclusions and, as was apparent in what he said today, seeks merits review, this Court cannot review the merits of the Tribunal decision. The Tribunal’s findings were reasonably open to it on the material before it for the reasons which it gave. If the Applicant may be seen as intending to raise an issue of irrationality, illogicality or unreasonableness in the Tribunal’s reasoning or ultimate conclusion, such a contention is not made out on the material before the Court (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1).
In particular, it cannot be said that the Tribunal findings on the material before it were findings at which no rational or logical decision-maker could arrive on the same evidence. As the First Respondent submitted, reasonable minds may differ on the findings made, but legal unreasonableness is not made out. The Tribunal provided evident, intelligible and logical reasons why it did not accept aspects of the Applicant’s claims. The only ground in the Applicant’s application is not made out.
When given the opportunity to raise any other concerns he had about the Tribunal decision or procedures, the Applicant sought to provide a further explanation for what he described as mistakes the Tribunal said he had made on the basis that he had not been able to express himself properly.
However, the Tribunal’s findings about inconsistencies in the Applicant’s evidence were reasonably open to it on the material before it for the reasons which it gave, in particular in relation to the inconsistencies and vagueness and generality in the Applicant’s evidence in relation to his knowledge of and claimed activities with the Al Fadeela Political Party.
In submissions in reply, the Applicant raised for the first time a claim that may have been intended to relate to his state of mind at the time of the Tribunal review. He claimed that he had been confused and perhaps lacked the ability to express himself and did not quite know what he was saying.
That assertion is not in itself such as to establish jurisdictional error. There is no transcript of the Tribunal hearing before the Court such as to support any contention that there was no meaningful opportunity afforded to the Applicant to participate in the hearing required under s.425 of the Migration Act 1958 (Cth). Insofar as the Applicant raised (very briefly) his mental capacity, contending that he was shocked and away from his family and mentally “not quite there”, there is no evidence before the Court to support any proposition that he was not fit to participate in the Tribunal hearing (see NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983 per Branson J at [58] and [69]).
Furthermore, the Tribunal took into account the Applicant’s claims about his mental condition, noting that he regularly attended a psychologist but that now, after 12 months, he felt better.
The Tribunal decision in this case does have several errors which appear to be minor typographical errors which I raised with counsel for the Minister. The Tribunal did not make any fundamental mistakes, for example in relation to identification of the Applicant’s country of origin or the country against which his claims were assessed. Reading the Tribunal decision fairly and as a whole, such errors are not such as to indicate that the Tribunal failed to consider the Applicant’s claims or otherwise failed to conduct the review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6).
Finally, the Tribunal remarks in relation to complementary protection are brief, but it is open to a Tribunal to take such an approach in circumstances where its earlier findings are not confined to issues that are relevant only to the Refugees Convention criterion but rather are, as here, expressed in general terms such as to encompass any claims in relation to significant harm (see SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452; [2015] FCAFC 121 at [36]).
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.
The Applicant has been unsuccessful. It is appropriate that he meet the costs of the First Respondent. The amount sought is considerably less than the amount provided for as an indicative guide in the Federal Circuit Court Rules. I consider that it is reasonable in light of the nature of this and other similar matters.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 9 November 2016