SZWAE v Minister for Immigration
[2017] FCCA 3205
•21 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAE v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3205 |
| Catchwords: MIGRATION – Application for review of a decision of the Refugee Review Tribunal – protection visa – procedural fairness – where Applicant alleges actual bias of the Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425 |
| Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10. Re Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425 |
| Applicant: | SZWAE |
| First Respondent: | Minister for Immigration & Border Protection |
| Second Respondent: | REFUGEE REVIEW Tribunal |
| File Number: | SYG 151 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 3 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor appearing as Counsel for the First Respondent: | Ms Helsdon |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
SYG 151 of 2015
| SZWAE |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| REFUGEE REVIEW Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Background
Before the Court is an application for judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal’) made 30 December 2014 wherein the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The grounds of application are as set out in the application filed and are 34 in number. I shall not set them all out in the body of these reasons but rather as an annexure to these reasons (‘Annexure A’). The Court’s consideration of them are set out from paragraph 33 herein.
The Applicant is a citizen of the United States of America (‘USA’). She arrived in Australia on 9 November 2010 travelling on a visitor (subclass 976) visa. The Applicant had travelled to Australia from the Philippines. On 23 November 2012 the Applicant lodged her current application for a protection (Class XA) visa.
The Applicant lodged two prior protection visa applications which were deemed invalid. The Applicant has been granted an associated bridging E visa which remains current to the present time.
On 2 September 2013 a delegate of the Minister (‘the delegate’) refused to grant the protection visa. On 13 September 2013 the Applicant applied to the Tribunal for a review of the delegate’s decision. Persons X, Y and Z were included by the Applicant in the application to the Tribunal.
On 21 August 2014 and 1 September 2015 the Applicant appeared before the Tribunal with her representative and gave oral evidence and presented arguments. At the second hearing, the Tribunal took evidence from two witnesses, on behalf of the Applicant, who were located in the Philippines.
At the time the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa, the Tribunal also found in relation to the second, third and fourth-named Applicants that the Tribunal did not have jurisdiction in the matter. This was so, the Tribunal found, as there was no reviewable decision in relation to those Applicants and thus it followed the Tribunal had no jurisdiction in those matters.
The Applicant filed an application initiating the current proceedings on 21 January 2015 in the Sydney Registry. The matter was transferred to the Melbourne Registry by order of Judge Nicholls on 23 February 2017.
The First Respondent filed a response on 30 January 2015 wherein the First Respondent submitted that the application for judicial review did not establish any jurisdictional error in the decision of the Tribunal dated 30 December 2014, and nor did the application for judicial review raise an arguable case for the relief claimed. Subsequently orders were made wherein the matter proceeded to a final hearing and these reasons relate to that final hearing.
The Court had before it the evidence as contained in the three Court Books in the proceedings and the First Respondent’s written submissions.
Claims
The Applicant’s claim to fear harm in the USA was based on the following claimed (by the Applicant) factual circumstances:-
a)the Applicant’s previous experiences in the USA Army including as a lesbian under the “Don’t Ask, Don’t Tell” policies. The Applicant claimed to have been the victim of prejudice, harassment and threats as a lesbian in military and government service; she claimed her family had also been threatened;
b)the Applicant’s work for the USA Government in the Philippines as an agent tasked with gathering evidence of any Americans engaging in human trafficking, protecting the victims in order for them to testify, and identifying any potential terrorist attacks against the USA;
c)criminal charges that the Applicant could face for having had sexual relations with a person of the same sex;
d)denial of basic services and medical treatment to the Applicant when she was forced to go into hiding for nearly two years before reaching Australia in 2010; and
e)denial of a livelihood of any kind to her in the USA; and further her possession of a secret document, an “Order of Battle” list and whistle-blowing activities.
The Applicant, as set out in paragraph 26 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) provided to the Tribunal a list of incidents which related to her claimed persecution, which included incidents in the USA military (gang rape by fellow USA soldiers in Iraq in 1991); sexual harassment in Honduras by USA Special Forces (1993-1994); incidents in the Philippines (including detention, prosecution and surveillance from 2004 to 2010); refusal of USA authorities to renew her passport in 2010; interrogation by ASIO for six to eight hours in 2010; refusal by the Department of Immigration and Citizenship to accept the Applicant’s protection visa application against the USA in 2011; an attack at the Applicant’s home claimed to have been orchestrated by New South Wales Police; from March 2012, claimed police harassment and 7 August 2014 (plain-clothed police informing the Applicant about the conspiracy against her).
The Applicant claimed that she had been persecuted due to her religious beliefs, nationality, mixed race, political opinion and membership of a particular social group.
The Applicant also provided to the Tribunal a large amount of information regarding her activities in the Philippines and the treatment of whistle-blowers by the USA administration, among other topics. The Tribunal read through two archived boxes of information provided by the Applicant. The information submitted, the Tribunal observed in paragraph 28 of the Decision Record, was of varying degrees of relevance to the issues to be decided by the Tribunal and too voluminous to summarise for the purposes of the Tribunal decision. The Tribunal indicated it would refer to relevant documents where necessary.
As also set out in the Decision Record and in paragraph 30 therein, the Tribunal noted:-
“In light of the medical reports that that applicant provided, the Tribunal enquired in relation to any health issues that might affect the applicant. After the first hearing, the applicant provided a written submission in which she claimed, among other things, that the Tribunal had said she was sick. The Tribunal was satisfied on the basis of the applicant’s fulsome evidence that she had the capacity to ventilate her claims. The hearings took place over a period of approximately eight hours and the Tribunal is satisfied that the applicant was given full opportunity to do so...”
The Applicant also made claims to fear harm in the Philippines. The Tribunal however, assessed her claims against the USA, of which she was a citizen.
The Tribunal noted in paragraph 31 of the Decision Record, that many of the Applicant’s claims were supported by the documentary evidence provided by her, and other claims were accepted by the Tribunal as plausible.
Tribunal’s Findings
The Tribunal’s findings are accurately and succinctly as set out in the First Respondent’s written submissions and are adopted below.
The Tribunal was satisfied that the Applicant was a citizen of the USA and assessed her claims against that country.
The Tribunal accepted that the Applicant was a lesbian; that she joined the army after leaving high school; that she was raped by other USA soldiers during the first Gulf War and was subjected to discrimination and harassment in the USA army on the basis of her gender and her sexuality and that, if she returned to the USA, she would not return to the USA army due to her age.
The Tribunal accepted that the Applicant was born in the Philippines and her mother was Filipina; that she was living in the Philippines from about 2002; and that she adopted a child and had a partner there. The Tribunal also found that the Applicant had contact with local authorities in the Philippines in relation to her investigation of trafficking activities, and that the contact included being accused of libel and making claims of harassment by the authorities.
The Tribunal also accepted that the Applicant was passing on information to the Philippines authorities and the USA Embassy in relation to human trafficking and the conduct of USA personnel. The Tribunal accepted as plausible that the Applicant was harassed and followed by the Filipino authorities.
The Tribunal did not accept that her family had been killed for hiding the Applicant, and the Court notes that the Tribunal found not only that a family had not been killed for hiding the Applicant, but that the Applicant was not in hiding. The Tribunal found those claims, both “speculative and unfounded.”
The Tribunal found that there was no evidence (including evidence from the Applicant’s witnesses) to support the Applicant’s claim to have had anything other than a journalistic role, in relation to human trafficking activities. The Tribunal highlighted inconsistencies in the Applicant’s written statements and oral evidence in relation to her claimed recruitment as an informant with the USA authorities. The Tribunal did not consider the Applicant’s claim to have been working for the USA authorities under cover to be consistent with her actions of making inflammatory public claims against Filipino officials. In light of these considerations, the Tribunal did not accept that the Applicant was recruited or engaged by USA agencies to undertake undercover work in the Philippines; that any USA agencies were pursuing her; or that they had any interest in her activities in Australia.
The Tribunal considered the Applicant’s claim to fear harm based on her possession of a secret document an “order of battle” list, and found that the Applicant was of no interest to the USA authorities on this basis. The Tribunal accepted that the Applicant had reported back to the USA authorities on matters such as ongoing deaths, corruption and large scale trafficking (whistle-blowing activities), but found that she was not of interest to the USA authorities as a result. The Tribunal accepted as plausible that relatives in the military could be questioned about their family members, but did not accept that this constituted threats against the Applicant’s family.
The Tribunal considered the Applicant’s claims about her experiences in Australia including being attacked and nearly murdered; ongoing harassment and other forms of violence; questioning by ASIO and victimisation; harassment, threats, intimidation, vilification and other forms of violence by New South Wales public officials and police. The Tribunal also noted the Applicant’s suspicion that the First Respondent’s Department was passing information onto the USA Government. The Tribunal found the Applicant’s claims that these events were linked to her claims against the USA authorities to be “speculative and unfounded ”.
Further, the Tribunal did not accept that the Applicant was being sought by the USA authorities for any actions relating to her work as a journalist in the Philippines.
Having made the above findings, the Tribunal was not satisfied that there was a real chance the Applicant would face serious harm if she returned to the USA on the basis of her activities in the Philippines, her claim to have been recruited as an informant for the USA authorities in the Philippines, her possession of a secret document, her whistle-blowing activities, approaches to her family or her experiences in Australia.
The Tribunal further found that the Applicant would not be persecuted on the basis of her:-
(a) mixed race;
(b)religious beliefs/political opinion “against the US policy of eliminating its opponents” “that the US defence establishment punishments victims who expose crime such as rape within its ranks”, “that lesbians and gays are harassed, humiliated and victimised within the US defence establishment” or “that paedophiles and those involved in trafficking women for sex who are US Government officials should be punished and not protected by the US Government”; or
(c)membership of a particular social group, namely, “whistle-blowers engaged in exposing US Government officials”, “human rights advocates against paedophilia and trafficking women for sex”, or “lesbians within the US defence and intelligence community.”
The Tribunal found that there was not a real chance the Applicant would be denied a livelihood in the USA, that the impact of migration laws resulting in a separation of the Applicant from her partner and child did not amount to persecution, and that there was insufficient evidence to find that any felony warrant against the Applicant had been imposed for a Convention reason.
Having considered the Applicant’s claims individually and cumulatively, the Tribunal found that the Applicant did not meet the refugee criterion. Based on its anterior findings and further consideration of the Applicant’s claims that she would face vilification due to her mixed race, the felony warrant and separation from her partner and child, the Tribunal found that there was not a real risk the Applicant would suffer significant harm in the USA.
Consideration
The Applicant’s 34 grounds of application are reproduced in the Applicant’s supporting affidavit filed contemporaneously with her application for judicial review. That affidavit also annexed two documents reproduced in the Court Book at pages 492 to 495.
The Minister made submissions on grounds 1 to 29 on the basis that grounds 30 to 34 are in the form of orders as sought by the Applicant. The jurisdictional error grounds, being grounds 1, 4, 5, 13, 23, 25 and 29, are not particularised and are in their present form, meaningless. They do not establish jurisdictional error in the decision of the Tribunal.
Where the Applicant submits that the Tribunal erred in its application of the criteria for a protection visa under both the Refugee Convention criteria and the complimentary protection criteria, and being grounds 12, 19 and 26, there is no basis to such grounds.
The Applicant may not like the findings made by the Tribunal on the evidence before it, or the weight given to some of that evidence, including country information, but that is a matter for the Tribunal as is the choice of country information.[1] It is also a matter for the Tribunal to assess the credibility of the Applicant’s factual claims. It is not for the Court, in the circumstances of this case, to conduct a merits review of the Tribunal decision.[2]
[1] NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10,11.
[2] Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
The Applicant’s grounds, as they relate to procedural fairness, being grounds, 3, 7, 9, 14, 15, 16, 17, 18, 20, 21, 22 and 27, also cannot succeed. The Tribunal did that which it was statutorily required to do to afford the Applicant procedural fairness. There was no failure to do so. The Tribunal invited the Applicant to a hearing in order for the Applicant to give evidence and present arguments and the Applicant, in fact, attended two hearings of the Tribunal. The Tribunal, also heard from two witnesses, on behalf of the Applicant, in the Philippines as requested by the Applicant.
As submitted by the First Respondent, the Applicant’s grounds in respect of procedural fairness do not identify any “information” to which the requirements of s.424A of the Migration Act 1958 (Cth) (‘the Act’) apply, or indeed, any other failures in the Tribunal’s affording to the Applicant procedural fairness.
As submitted by the First Respondent, to the extent that the grounds allege actual bias, the Applicant has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proven.[3] Again, as submitted by the First Respondent, nor are the relevant circumstances such that a fair minded and informed person might reasonably apprehend that the decision-maker might not have bought an impartial mind to bear on the decision, such as to establish apprehended bias.[4]
[3] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531 per Gleeson CJ and Gummow J.
[4] Re Refugee Review Tribunal; Ex parte H [2001] 179 ALR 425, 27.
There is no evidence of any form of bias in the Tribunal decision. Rather, there is a Tribunal decision that considered all of the claims and integers of such claims made by the Applicant in considerable and careful detail. The Tribunal made findings which both supported some of the factual matters put before the Tribunal by the Applicant, and which otherwise did not in circumstances where the Tribunal found the Applicant’s claims unsubstantiated on the basis of their implausibility and/or on the basis that they were speculative and unfounded and/or inconsistent with other evidence of the Applicant, or of country information, which was, throughout the hearing, put to the Applicant. Indeed, the Tribunal decision reveals a thorough and careful consideration of all the matters put before it by the Applicant.
The Tribunal considered the reports provided by the Applicant from counsellors and psychologists, which referred to the Applicant suffering from post-traumatic stress disorder and made relevant inquiries of the Applicant as to any health issues that may have affected the Applicant, as set out in paragraph 15 above. The Tribunal did afford to the Applicant a “real and meaningful” opportunity to participate in the hearing, as required pursuant to s.425(1) of the Act.
All of the findings made by the Tribunal were open to it on the evidence before it and for the reasons given by the Tribunal.[5] The grounds of application do not particularise how it is the Tribunal erred in failing to take into account relevant considerations, or took into account irrelevant considerations, or how its decision was said to be unreasonable. None of these generalised grounds are made out.
[5] Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
Insofar as the Applicant’s grounds describe the Tribunal’s reasoning as unreasonable, perverse or capricious, those grounds do no more than express emphatic disagreement with the decision.[6] The Tribunal did not accept that the Applicant had a well-founded fear of harm from non-State agents and thus, the question of whether effective State protection was available to her did not arise on the facts as found by the Tribunal.[7]
[6] Re Minister for Immigration and Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165, 5 per Gleeson CJ.
[7] SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841, 25.
The Tribunal correctly applied the criteria for a protection visa both under the Refugee Convention and the complementary protection criteria. There is no jurisdictional error attending the decision of the Tribunal.
The application must be dismissed and a costs order shall follow.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 22 December 2017.
‘Annexure A’
0
6
2