WZARI v Minister for Immigration
[2013] FCCA 217
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZARI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 217 |
| Catchwords: MIGRATION – Application for judicial review of Refugee Review Tribunal’s decision – grounds unparticularised – written submissions of applicant filed in Court – oral and written submissions of applicant not revealing jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426, 501 |
| Applicant: | WZARI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 225 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 25 February 2013 |
| Date of Last Submission: | 25 February 2013 |
| Delivered at: | Melbourne (by video link to Perth) |
| Delivered on: | 14 May 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr L. Nguyen |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application filed 27 September 2012 is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 225 of 2012
| WZARI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 September 2012. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. The Court has made directions for the filing of further materials but as it transpired the applicant filed nothing until the day of trial when, by leave of the Court and without opposition by counsel for the Minister, he filed a tranche of materials which included a nine page written submission together with supporting material from relatives, his partner and his children.
The procedural history of the matter is not controversial and what I will now set out is taken essentially from the first respondent’s written submissions which in my opinion correctly categorise the matter. The factual issues raised by the case are by and large not controversial.
The applicant was born in Fiji on 18 June 1976 and arrived in Australia in 1990. He lived in Australia for many years without taking out Australian citizenship. On 26 May 2004 the applicant was granted his most recent visa which was a Partner (Class BS subclass 801) visa. He had had a number of bridging visas self-evidently in the interim. On 24 March 2005 the applicant was convicted of aggravated sexual penetration, unlawful detention, threats to kill and breach of Violence Restraining Order. From the applicant’s own materials it is apparent that an initial term of imprisonment was the subject of an appeal by the prosecuting authorities and he was ultimately imprisoned for a period of seven years and three months.
Doubtless as a result, on 10 March 2010 the applicant’s visa was cancelled under s.501 of the Migration Act 1958 (“the Act”). It is to be noted, of course, that the effects upon the applicant’s children were no doubt a relevant consideration in the process whereby his visa was revoked. The applicant lodged an application to review the decision to revoke his visa to the Administrative Appeals Tribunal (“the AAT”) but that was refused on the basis that the AAT lacked jurisdiction (see Court Book (“CB”) 45).
On 13 June 2012, the applicant applied for a Protection Visa and as indicated on 9 August 2012 a delegate of the first respondent refused to grant one. On 15 August 2012, the applicant applied to the Tribunal for a review of the delegate’s decision and, as earlier indicated, that claim was rejected and that led to this proceeding.
The application filed by the applicant details only two grounds of appeal which would have to be said to be somewhat bare bones. The first ground was that “THE TRIBUNAL MADE A LEGAL ERROR IN DETERMINING MY CLAIMS FOR PROTECTION”. The second ground was that “THE TRIBUNAL FAILED TO APPLY THE CORRECT TEST FOR DEGRADING TREATMENT”. The applicant filed a copy of the Tribunal’s decision with his application. Nothing further was filed until today.
At this point it is appropriate to turn to the Tribunal’s decision itself. The Tribunal commenced by referring to the application for review and set out the relevant law in terms which, in my view, do not admit of any proper criticism. It should be noted that the Tribunal was well aware of the complementary protection criteria set out in s.36(2)(aa) (see, for example, paragraphs 16-18 purely by way of illustration).
It is also clear that the Tribunal was well aware of the definition of ‘significant harm’ and its incorporation, amongst other things, of the notion of degrading treatment or punishment (see paragraph 17 of the decision).
The Tribunal then went on at CB120-124 to record the applicant’s written claims. These claims had been advanced both in his application and in materials filed by an agent. The Tribunal, in my view, correctly summarised the applicant’s claims (CB120-121). This included the fact that his parents did not support the military. The parents had made a stand against military rule in Fiji. The applicant himself did not support continuing coups in Fiji. Now that he had said this he was concerned that he will suffer prejudice if he is returned.
The applicant also referred to the difficulties that would be occasioned with his children in the event that he was returned and his economic life would be difficult if he returned to Fiji given that he has no future prospects of employment. In regard to this latter point, it should be noted that the applicant has developed a number of skills during his time in Australia including a number of trade skills during his extensive period of incarceration.
The Tribunal also referred to the claims that the applicant made at the hearing. The applicant elaborated upon his fears as to what would occur to him if he returned to Fiji. He asserted he had spoken a few times at meetings outside Parliament House in Canberra about the Fijian regime and this would put his life in danger. The Tribunal recorded at CB125-127 the various matters that were put to the applicant at the hearing which included the eliciting of information that the applicant’s father had returned to Fiji on occasion without incident.
Having dealt with a post-hearing submission at CB127-128, the Tribunal went on at CB128-133 to elaborate its findings and reasons. From paragraphs 57-65 the Tribunal dealt with the issue of political opinion. I note that the applicant himself said he would not speak out against the regime if he went to Fiji because of fear of the consequences. I note that the Tribunal accepted on balance that the applicant may well hold an opinion opposed to the military regime. The Tribunal, however, found at paragraphs 59 and 60 (CB129-130):
“59. Having considered the information before the Tribunal I accept that the Applicant would not, in fact, criticise the regime if he were to return to Fiji. However, I am not satisfied that he would refrain from doing so because of a fear of harm or for any reason other than that it is simply not his practice to express his political opinion in public. I accept that he has been in custody, as a prisoner and as an Immigration detainee, since before the coup which brought Commodore Bainimarama to power in December 2006 and that he has thus had no opportunity to take part in any protest activity in person. However, on his own evidence, he has never taken any other step to publish his views over developments in Fiji. He has never expressed himself in writing in support of a restoration of democracy and against the regime, on the internet or in any other way. He does not claim to have joined the Fiji Democracy and Freedom Movement or to have had any communication at all with it. He does not claim to have donated money to the Movement or to any other organisation working against the regime. He does not claim to have urged his family, relatives or friends to oppose the regime. Nor does he claim that he was inhibited from undertaking any of these possible actions by a fear that they would somehow cause him or his family or friends harm, even though undertaken outside Fiji.
60. The Applicant’s sole claim to have opposed the regime since 2006 is that he supported his parents in their opposition to it. At the hearing he was unable to indicate any particular actions that this support may have involved. …”
Against the facts set out, it is no surprise that the Tribunal found that the applicant had never taken any steps to express his political opinion against the Fiji military regime in public and that he would not do so in Fiji. For this reason it is equally unsurprising the Tribunal found that the applicant would not suffer harm in Fiji because of an adverse political opinion imputed to him either because of his own past activities or his father’s given that his father has visited Fiji and not been harmed.
At paragraphs 66-73 (CB131-132), the Tribunal dealt with a number of issues. The first one was whether the applicant would suffer harm as a result of being a deportee who had sought protection in Australia. The Tribunal noted that it had put country information to the applicant at the hearing which indicated that people are not harmed in Fiji because they sought protection in Australia, unless they also happened to be high profile critics or opponents of the regime. The Tribunal found that the applicant did not meet such a criterion and that he would therefore not face harm. Such a finding was clearly open to the Tribunal.
The Tribunal then dealt with ‘Economic harm’ and although it was clear to the Tribunal that the applicant faced considerable difficulties in returning to Fiji, the Tribunal concluded not only that the applicant would be able to count on his trade skills in searching for work in Fiji but that (paragraph 69):
“… I do not accept that the harm these problems would cause him could be said to amount to serious harm, that it would have a discriminatory character or that it would constitute persecution.”
The Tribunal’s finding once again seems to me to be wholly open to it.
Finally, the Tribunal noted that the applicant had expressed concerns about a number of other matters relevant to his possible return to Fiji including most particularly his wish to remain with his children and other members of his family and his determination to start life afresh. As the Tribunal correctly noted at paragraph 70, however, these are not matters that arise for consideration in relation to his claims for protection in Australia under the terms of either s.36(2)(a) or s.36(2)(aa) of the Act.
The Tribunal’s critical finding is at paragraphs 71-73 (CB132) as follows:
“71. In the light of all the information before the Tribunal I am not satisfied there is a real chance that the Applicant would suffer serious harm amounting to persecution because of his real or imputed political opinion, the fact that he had been deported to Fiji after failing to obtain protection in Australia or because he would face economic difficulties there. He does not relevantly claim to fear harm in Fiji for any other reason and no other relevant reason is apparently on the face of the information before the Tribunal.
72. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Fiji, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
73. I have also considered whether the Applicant might meet the alternative criterion for protection under the complementary protection provisions of s.36(2)(aa) of the Act. However given my findings, above, that he would not suffer serious harm if he were to return to Fiji, I am not satisfied that it provides any basis for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Fiji, there would be a real risk that he would suffer significant harm in terms of s.36 (2)(aa) of the Act.”
It should be noted that the applicant has not either in his more recent written materials or in any of his other materials really spelt out in any detail the matters going to support the particular grounds of review that he has articulated. It is sufficient for these purposes to say that there is no obvious legal error in the Tribunal’s decision that would satisfy the ground “the Tribunal made a legal error in determining my claims for protection.”
The next ground is that the Tribunal failed to apply the correct test for degrading treatment. It is clear, in my opinion, the Tribunal was well aware of the terms of s.36(2)(aa) and it is clear that the Tribunal separately considered the question of complementary protection. To the extent that the question of degrading treatment is, so to speak, in issue it is clear that the terms of the legislation were well in the Tribunal’s mind and that the Tribunal did not overlook this issue.
It is necessary to finally deal with the applicant’s tranche of written submissions and his oral submissions before the Court. The applicant in his oral submissions confirmed the sincerity of his application and the views expressed in his written and other materials. He emphasised the fact that the sees his future in Australia with his children and needs to remain here with them. There can be no question for a moment that these are very sincerely held views and I have no doubt whatever that he desperately wishes to remain here with his family. His written materials filed in Court include a letter to the Court from his partner, the mother of his children and documents from the children themselves. They all wish him to stay and that is perfectly natural. However, for the reasons already given that was a matter for consideration at the time when the applicant’s visa was being cancelled.
It is not relevant to whether or not he is a refugee and/or would suffer treatment within the complementary provisions in s.36(2)(aa). Counsel for the First Respondent made a number of submissions in response to the applicant’s written submissions filed in Court. Insofar as the applicant’s written submissions may be said to constitute an assertion of bias I accept counsel’s submission that this matter is one that would require significant evidence and what is sometimes referred as clear proof. There is nothing in the Tribunal’s reasoning and the materials generally that suggests the Tribunal failed to bring a mind free from prior prejudice to the applicant’s case.
Insofar as the applicant seeks to raise issues going to relevant or irrelevant materials and as to unreasonableness, I accept counsel’s submissions that the Tribunal findings were well open to it on the materials. Much of what the applicant puts in play really amounts to submissions on the merits. So far as the applicant refers to his father’s trip to Fiji I accept counsel’s submission that no error of fact is shown and refer to paragraph 63 of the Tribunal’s reasoning.
Insofar as the applicant at pages 8 to 9 makes a complaint about the nature of the hearing, I accept counsel’s submission that while the hearing by video link over a great distance is by no means ideal, in the circumstances of the case there is no suggestion that the applicant was denied procedural fairness and denied the opportunity to have a hearing within the meaning of the legislation as is required by s.426 of the Act.
Finally, I should say that I accept counsel’s submission that is clear the Tribunal did not conflate the application for refugee convention protection and the complementary protection application. So much is quite apparent from paragraphs 74 and 75 of the Tribunal’s decision.
For these reasons it is quite apparent that the application does not reveal any error sufficient to grant the orders that the applicant seeks. The application will be dismissed accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 14 May 2013
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