Federal Court of Australia

FIV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 158

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (as it then was, now the Federal Circuit and Family Court of Australia (Div 2)) on 3 March 2020 dismissing an application for judicial review of a decision of the second respondent (Tribunal) with costs: FIV17 v Minister for Immigration & Anor [2020] FCCA 702. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Protection (Class XA) visa.

background

2    The appellant is a citizen of Saudi Arabia. He arrived in Australia on 17 November 2013 holding a Visitor (Class FA) (subclass 600) visa.

3    On 25 November 2013 the appellant applied for the visa. Among other things, in support of his application the appellant provided a statutory declaration made on 23 November 2013 in which he claimed that he feared to return to Saudi Arabia because of the persecution that he witnessed at the hands of the Saudi regime due to his Shiite beliefs, his political opinions and because he was a member of a particular family which, like the primary judge, I will refer to as the “AN” family.

4    In the statutory declaration the appellant also set out his claims in more detail. In summary he claimed that:

(1)    the AN family was regarded as leading the uprising against the royal family and Wahabism;

(2)    demonstrations had been led by members of his family, including in the eastern province of Saudi Arabia where one particular member of his family led the demonstration;

(3)    on the evening of 21 December 2011 while driving his car he saw a peaceful demonstration on Tarout Island in the eastern region of Saudi Arabia. At the time, he got out of his car and filmed the demonstrators using his mobile phone. After a few minutes he heard gun shots, rushed back to his car and, when he got to his car, saw four policemen behind him. Upon driving away he was chased by the police and thereafter arrested, tortured, charged with a number of offences and detained;

(4)    he was eventually released on condition that he attend the police station every week to sign a document stating that he was prohibited from taking part in any demonstrations and to prove that he remained in Saudi Arabia;

(5)    after his release he continued to attend demonstrations against the royal family, wearing a face mask so he would not be recognised;

(6)    he was then told he had to attend the police station three times a week, rather than weekly, following which his brother advised him to go to Australia. In order to do so he crossed the border to the United Arab Emirates (UAE) and received his visitor’s visa for entry into Australia on 14 November 2013 while in Dubai; and

(7)    he was informed that his brother had been arrested because of his departure from Saudi Arabia.

5    On 4 February 2014 the appellant attended an interview with a delegate of the Minister.

6    Following his interview with the delegate, the appellant’s representative provided a further statutory declaration made by the appellant on 11 February 2014 to the Minister’s department setting out additional information about his claims, including about his connection to the AN family. In relation to that issue the appellant provided pictures and an extract from a “historical book”, but no translation of that extract.

7    On 21 November 2014 the Minister’s delegate refused to grant the appellant the visa.

8    On 27 November 2014 the appellant applied to the Tribunal for review of the delegate’s decision.

9    On 3 August 2016 the appellant’s representative provided a submission to the Tribunal (August 2016 Submissions). That submission included a translated copy of the pages from the text “History and Heritage of Al-Awamiya” (Translation) and a photograph of the appellant attending a demonstration in Canberra in 2016 protesting against the execution of a member of the AN family.

10    On 22 September 2016 the Tribunal, differently constituted, affirmed the decision under review (First Tribunal Decision).

11    On 18 April 2017, by orders made by consent by the Federal Circuit Court, the First Tribunal Decision was quashed and the appellant’s visa application was remitted to the Tribunal for reconsideration according to law.

12    On 26 September 2017 the appellant was invited to and attended a hearing before the Tribunal.

13    On 21 September 2017 the appellant’s representative provided a further written submission to the Tribunal addressing, among other things, the appellant’s religious beliefs, his membership of the AN family and his attendance at the demonstration in Canberra in 2016.

14    On 1 November 2017 the Tribunal affirmed the decision under review.

the Tribunal’s decision

15    The Tribunal set out the appellant’s claims from his application for the visa and from the additional statutory declaration he provided and summarised the evidence he gave at the hearing before it. It then turned to consider each of the appellant’s claims, setting out his evidence and making findings in relation to that evidence.

16    In summary, the Tribunal found that the appellant’s claims were not credible and that the appellant was not a reliable, credible or entirely truthful witness. The Tribunal considered that the appellant had fabricated most of his claims in order to be granted the visa. Among others, the Tribunal made the following findings:

(1)    the Tribunal did not accept that the appellant had attended anti-government protests in Saudi Arabia or that he had been detained, beaten, imprisoned or charged by Saudi authorities as a result of any anti-government activities. The Tribunal noted that the appellant’s claims in this regard relied on his oral evidence which it had found lacked credibility and that there were a number of inconsistencies and implausible matters in the claims;

(2)    in relation to his political activity in Australia, the Tribunal accepted that the appellant attended a demonstration in Canberra in 2016 and that he corresponded with New South Wales police about protests in March and November 2015 but did not accept that these activities were indicative of a continuing pattern of anti-government activity from his time in Saudi Arabia. The Tribunal found this was part of a deliberate scheme in which the appellant attempted to create a refugee profile and thus disregarded the conduct under s 91R(3) (now repealed) of the Migration Act 1958 (Cth) for the purpose of determining whether the appellant had a well-founded fear of persecution;

(3)    the Tribunal did not accept that the appellant is, or would be considered to be, a member of the AN family. At [88]-[89] of its decision record the Tribunal said (as written):

88.    … I accept that there are media reports that the [AN] family are targeted by the Saudi government that his nephew, a minor, remains sentenced to death after being sentenced in 2012 and that two cousins were shot and killed this year. Given this, the applicant's claimed connection to the [AN] family and the seriousness of the anti­government charges he claimed to face, it lacks credibility that he would be released from prison, the judge fail to turn up to his first trial and he be would able to leave Saudi Arabia, enter the UAE and leave the UAE, while at all times using documents in his own name if he were considered to be close to [AN] family.

89.    I have taken into account the document (folio 37) that he claims shows the [appellant’s] family being part of the [AN family] but lend more weight to the improbabilities of the claim outlined above. I note that the document itself notes that some families (including [appellant’s family]) have the same surname but different origins so are not connected, and that part of [appellant’s family] are in fact part of [AN family]. Therefore, while there may be connections (of indistinct strength between one part of [appellant’s family] and [AN family]), it is therefore equally true that part of [appellant’s family] have no kinship with the [AN family] linked [appellant’s family].

(Footnotes omitted.)

(4)    in relation to the appellant’s Shia identity, the Tribunal accepted that the Shia community in the eastern province of Saudi Arabia faces discrimination, particularly in relation to employment. But it did not accept that the discrimination reaches the threshold that would constitute serious harm for the purposes of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Convention) or that the appellant “has or that there is a real chance that he will suffer serious harm because of it”. The Tribunal noted that the appellant had been educated, had been employed in Riyadh, was able to move to another town where he was again employed, was able to get a passport and was free to travel to the UAE and then to Australia. The Tribunal also noted that, while the appellant was unable to work for the government because of his religious identity, based on his claims it appeared that he would not have wished to serve the government. Further, the Tribunal noted that he had been able to obtain three jobs in the private sector, had been gainfully employed since leaving school and was able to travel. The Tribunal found that the appellant was therefore able to maintain a lifestyle well above being able to subsist; and

(5)    the Tribunal acknowledged that there had been security disturbances in Awamiyya recently and that security checkpoints were in place but, given its finding that the appellant was not politically active, was able to subsist and was not of interest to the Saudi authorities, it considered that he would not be detained if stopped at those checkpoints. The Tribunal noted that the appellant did not have to remain in Awamiyya, would be able to move if required and had admitted that, while Awamiyya was his home, there was nothing to stop him from moving to other cities. The Tribunal also did not accept that the appellant was arrested and imprisoned in 2006 in order to force one of his brothers to return from Thailand.

17    The Tribunal concluded, based on the appellant’s claims both individually and cumulatively, that he did not have a well-founded fear of persecution for any Convention reason at the time or in the reasonably foreseeable future.

18    The Tribunal then assessed the appellant’s claims against the complementary protection criteria in s 36(2)(aa) of the Act. It noted that, although it had disregarded the appellant’s attendance at the demonstration in Canberra in 2016 and his correspondence with the New South Wales police about protests in March and November 2015 for the purposes of his refugee claims, it had regard to them in assessing his claims for complementary protection.

19    Relevantly, the Tribunal did not believe that these activities were engaged in as an expression of genuine political opposition but rather for the purposes of creating a refugee profile. The Tribunal was satisfied that the appellant’s identity would not be known by Saudi authorities, noting there was nothing to identify him other than as a face in the crowd and that his claim that he was photographed was based on his oral evidence given at the hearing which the Tribunal found lacked credibility. The Tribunal observed that the appellant provided no independent country information that indicated that people attending such demonstrations had subsequently been targeted by Saudi authorities and that no such information was available to the Tribunal.

20    As the Tribunal did not accept that the appellant: had ever been politically active in Saudi Arabia or been detained for that reason; was on a travel black list; took part in, photographed or organised protests; was the editor of a particular publication; or was a member of the eastern area revolution, it was not satisfied that there were any substantial grounds for believing that there was a real risk of significant harm for the purposes of s 36(2)(aa) of the Act. While the Tribunal accepted that the appellant may face discrimination on return to Saudi Arabia because of his Shia faith, it was also not satisfied that such threat of discrimination met the definition of significant harm for the purposes of s 36(2)(aa) of the Act. For those reasons the Tribunal did not accept that the appellant was entitled to complementary protection.

the proceeding before the federal circuit court

21    By application filed on 6 December 2017 the appellant sought judicial review of the Tribunal’s decision. Before the primary judge the appellant raised two grounds of review as follows (as written):

(1)    The applicant claimed he was a member of the ‘AN’ family, and he feared persecution as a result if required to return to Saudi Arabia. The Administrative Appeals Tribunal (“the Tribunal”) found at [88] that “I do not accept that the applicant is or would be considered to be a member of the ‘AN’ family”. The language used by the Tribunal at [88] and [89] indicates the Tribunal had a real doubt concerning this finding. In the circumstances, the Tribunal was required to consider the possibility that the applicant was a member of the ‘AN’ family. Its failure to do so involved jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220).

(2)    The applicant claimed he led and spoke at a protest in Canberra in 2016 against the Saudi government and, as a result, he feared persecution if required to return to Saudi Arabia. The Tribunal, in assessing the complementary protection limb of the applicant’s visa claim, rejected the sur place claim at [95]. The Tribunal’s critical finding was that “I am also satisfied that the applicant’s identify would not be known to Saudi authorities”. The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal misunderstood the applicant’s claims concerning the protest, or did not give proper and genuine consideration to the evidence in support of the claim.

22    The primary judge addressed these grounds commencing at [35] of FIV17.

23    In relation to the first ground the primary judge was satisfied that the Tribunal considered the possibility that the appellant was a member of the AN family, noting that it made reference to the evidence contained in a document provided to it but clearly rejected that evidence. The primary judge was satisfied that the Tribunal had considered all of the facts given by the appellant including his capacity to leave Saudi Arabia and then the UAE using his own documentation. The primary judge held that use of the term “there may be connections” by the Tribunal at [89] of its decision record (see [16(3)] above) did not amount to an expression of real doubt about its conclusion at [88] of its decision record that the appellant was not, or would be considered to be, a member of the AN family and thus subject to a real chance of persecution upon his return: FIV17 at [37]-[38].

24    The primary judge noted that the Tribunal had concerns about the appellant’s credibility and was satisfied that the finding that the appellant was not at risk of persecution was open to it on the evidence. The primary judge observed that the Tribunal considered the possibility of links but concluded they did not apply to the appellant and that he would not be considered to be a member of the AN family: FIV17 at [39].

25    In relation to the second ground the primary judge found that the Tribunal had, in turn, found that the appellant attended the demonstration in Canberra in 2016 but that this was done with the sole purpose of strengthening his claims for protection, as opposed to any continuation of political activities in which he was involved in Saudi Arabia. The primary judge noted that the Tribunal had found that there was no evidence before it to indicate that the appellant’s attendance at the demonstration would or had come to the attention of the authorities in Saudi Arabia. The primary judge was satisfied that there was little evidence before the Tribunal, other than speculation, that those at the Saudi Arabian embassy may have taken photographs and that the Tribunal’s finding that “there was nothing to identify the [appellant] other than as a face in the crowd” was open to it. The primary judge concluded that there was nothing illogical, irrational or unreasonable in the Tribunal’s finding in that regard. His Honour was satisfied that the Tribunal gave proper and genuine consideration to the evidence before it and rejected it: FIV17 at [40]-[42].

the appeal

26    The appellant was represented before the primary judge but he was not represented on the appeal.

27    In his notice of appeal filed on 23 March 2020 the appellant raises two grounds of appeal (as written):

1.    The applicant contended in the Federal Circuit Court that he was a member of the [AN] family, and he feared persecution as a result if required to return to Saudi Arabia. The Administrative Appeals Tribunal ("the Tribunal") found at [88] that "I do not accept that the applicant is or would be considered to be a member of the [AN] family". The language used by the Tribunal at [88] and [89] indicates that the Tribunal had a real doubt concerning this finding. In the circumstances, the Tribunal was required to consider the possibility that the applicant was a member of the [AN] family. Its failure to do so involve jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220.the Tribunal was not certain about this issue, The Primary Judge also erred in dismissing the applicant's application without being certain that the Tribunal was certain in its conclusion.

2.    The applicant claimed that he led and spoke at a protest in Canberra in 2016 against the Saudi government and, as a result, he feared persecution if required to return to Saudi Arabia. The Tribunal, in assessing the complementary protection limb of the applicant's protection visa claim, rejected the sur place claim at [95]. The Tribunal's critical finding was that "I am also satisfied that the applicant's identity would not be known by Saudi authorities". The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal misunderstood the applicant's claim concerning the protest, or did not give proper and genuine consideration to the evidence in support of the claim. The Primary judge erred in dismissing the applicant's application as the primary judge did not assessment of the tribunal reasoning was not sufficient.

28    These grounds of appeal repeat the grounds raised before the primary judge but contend, implicitly if not explicitly, that the primary judge erred in not accepting either of these grounds.

29    The appellant did not file any written submissions in support of his grounds of appeal. At the hearing, when invited to do so, he made submissions the effect of which were to invite the Court to undertake merits review. The appellant first took the Court to the Translation and made submissions about his family history and explained who the people referred to in the Translation were and how they were related to him. The appellant then turned to ground two and submitted that the photograph was provided to him by a journalist from the journalist’s Twitter account and that there was no plan for his photograph to appear in the media for fear of his family’s safety.

30    I consider each ground of appeal below.

Ground one

31    By this ground the appellant takes issue with the primary judge’s conclusion that the Tribunal’s findings at [88]-[89] of its decision record were not attended by sufficient doubt to require consideration by the Tribunal of the possibility that the appellant was a member of the AN family. In other words the appellant contends that the Tribunal’s findings about his connection to the AN family were not conclusive, that it expressed some doubt and that it should have considered the likely outcome or position in the event that it was wrong.

32    The circumstance in which a tribunal should consider the possibility that events may have occurred and that its findings of fact may not be correct were explained in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In that case, after referring to a number of earlier decisions, Sackville J (with whom North J agreed) said at [60]:

It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.

33    At [66]-[67] his Honour continued:

66    None of this is to deny that there may be cases in which a failure by the RRT to consider whether an alleged event may have occurred constitutes a ground of review, even though the RRT considers it likely that the event did not occur. To take an example from Guo, the applicant may rely on the experiences of previous groups of boat people who had been returned to their country of origin. The RRT may find that it is unlikely (in the sense of less rather than more likely on the balance of probabilities) that the previous group had been persecuted for a Convention reason. But the RRT's reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT's findings. If the RRT's reasons demonstrate that the experiences of the earlier groups materially bear on the chances that the applicant will be persecuted, a finding that there is a substantial chance (although not a likelihood) that previous groups were in fact persecuted might have to be taken into account if the RRT is to undertake the reasonable speculation required of it. Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act.

67    In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271–72, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

34    The question before the primary judge was whether a fair reading of the Tribunal’s reasons permitted a conclusion that the Tribunal had a real doubt that its findings on material questions of fact were correct. His Honour answered that question in the negative. I can discern no error in the primary judge’s conclusion and thus his rejection of ground one before him.

35    The Tribunal’s findings in relation to the question of whether the appellant was connected to the AN family are at [88]-[89] of its decision record (see [16(3)] above). At [88] the Tribunal rejected the claim that the appellant was, or would be considered to be, a member of the AN family. It did so based on its finding that, if the appellant was considered to be close to that family, it was not credible that: he had been released from prison; the judge presiding over his case had failed to attend on one occasion; and he had been able to leave Saudi Arabia and travel to the UAE using his personal documents.

36    At [89] of its decision record the Tribunal observed that, while there may be connections between one part of the appellant’s family and the AN family, “it is therefore equally true that part of [the appellant’s family] have no kinship with the [AN family] linked [appellant’s family]”. It is apparent that the Tribunal was referring to its understanding, based on the material relied on by the appellant, that while there may be connections between parts of the appellant’s family and the AN family, there is equally no kinship between other parts of those two families.

37    That understanding was based on the following material relied on by the appellant before the Tribunal:

(1)    the appellant’s statutory declaration dated 11 February 2014 in which he stated that his “grandfather…changed the name of our family from [AN] to [the appellant’s family] name in the fifties of the last century, because he was wanted by Saudi authorities as well”;

(2)    the August 2016 Submissions which included a submission that:

In reference to the relation between the review applicant and sheikh [AN], please see the enclosed translation of the book which talked about this relationship with sheikh [AN] family…

(3)    the Translation which was attached to the August 2016 Submissions and which included:

There are some family that has one and the same surname but they have different origins, so they are not connected by kinship; for example: [appellant’s family]1,…

…

1 – Part of [appellant’s family name] are in fact part of [AN]; namely: the family of …

38    At [89] of its decision record the Tribunal expressly referred to the Translation. The Tribunal recorded the content of the Translation including that it stated that some families have the same surname but different origins so that they are not connected and that part of the appellant’s family were in fact part of the AN family. Based on the Translation the Tribunal then made the statement set out at [36] above and came to its conclusion that it was equally true that part of the appellant’s family have no kinship with the AN family that was linked to the appellant’s family. It was open to the Tribunal to reach that conclusion based on the material relied on by the appellant. While the Tribunal referred to the Translation and took it into account, it lent more weight to the improbabilities of the appellant’s claim as outlined at [88] of its decision record.

39    The statement by the Tribunal, at [89] of its decision record, that “there may be connections” between the two families did not amount to an expression of real doubt about its conclusion at [88]. That was the conclusion reached by the primary judge.

40    Ground one is not made out.

Ground two

41    By this ground the appellant contends that the primary judge erred in his findings that the Tribunal: did not misunderstand the appellant’s sur place claim based on having attended a demonstration in Canberra in 2016; and did in fact give proper and genuine consideration to the appellant’s evidence in support of that claim.

42    Before the primary judge the appellant focused on [95] of the Tribunal’s decision record and the Tribunal’s finding that it was satisfied that the appellant’s identity would not be known by Saudi authorities.

43    The claim in relation to the appellant’s attendance at the demonstration in Canberra was initially included in the August 2016 Submissions. The relevant submission was in the following terms:

One of the people who led these demonstrations in Canberra was the review applicant who gave a very emotional speech about XXX, (photo is enclosed to this submission), also attached are some correspondences between the review applicant and the Australian police in relation to the organization of the demonstrations.

44    In a further submission provided to the Tribunal on 12 October 2017 the appellant’s representative stated in relation to this issue:

In relation to the [appellant’s] activities in Australia, the [appellant] submitted to the tribunal that he was there because of the execution of XXX, to express his condemnation to what happened, here, I submit that the applicant’s links to XXX is very relevant to the establishing the Sur place status, because it was a continuation for the applicant’s past history in demonstrating against the Saudi regime in the past, in the same time, it is a continuation for his relationship with XXX.

45    The only documentary evidence before the Tribunal about the appellant’s attendance at the Canberra demonstration was the photograph attached to the August 2016 Submissions. The Tribunal referred to the photograph at [61] of its decision record. There was no evidence nor any details provided about the provenance of the photograph. Contrary to the appellant’s submission, there was no evidence before the Tribunal that it had been published by a journalist on his Twitter account and brought to the appellant’s attention and/or provided to the appellant by that journalist. The photograph was merely enclosed in the August 2016 Submissions. Nor was there any evidence about how the appellant’s attendance at a demonstration in Canberra would come to the attention of the authorities in Saudi Arabia.

46    The only evidence given by the appellant about his attendance at demonstrations in Australia was that recorded by the Tribunal at [52] of its decision record, which seemed to relate to a demonstration outside New South Wales parliament and not the Canberra demonstration, where the Tribunal recorded:

Asked about his activities in Australia he claimed he also organised a demonstration outside NSW parliament but didn't show his face while there. Asked how people would know he was there, he claimed the Australian government had his name. Asked how they would know his name from the Saudi embassy he claimed he shouted and took the microphone. He didn't know how they would know his name but claimed they may have taken photos and got his identity from that.

47    Given the limited extent of the evidence and the Tribunal’s adverse credibility findings about the appellant, it was open to it to find, as it did at [95] of its decision record, that there was nothing to identify the appellant in the photograph other than as a face in the crowd and to be satisfied that the appellant’s identity would not be known by Saudi authorities.

48    There was no error in the primary judge’s rejection of ground two. It follows that ground two of the appeal fails.

conclusion

49    For these reasons the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs of the appeal as agreed or taxed.

50    I will make orders accordingly including an order, as requested by the Minister, that his name be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

Associate:

Dated:    3 March 2023