Aal17 v Minister for Immigration
[2019] FCCA 3124
•31 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAL17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3124 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal brought an independent and impartial mind to the determination of the matter on its merits – whether the Tribunal’s adverse findings were open – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | AAL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 9 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Ms K Evans Sparke Helmore |
ORDERS
The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.
DATE OF ORDER: 31 October 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 9 of 2017
| AAL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 December 2014 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of China and her claims were assessed against that country. The applicant applied for an FA-600 Tourist visa in an offshore application on 17 March 2014 which was granted on 18 March 2014. The applicant arrived in Australia on 5 May 2014. The applicant lodged an application for a protection visa on 21 July 2014.
The applicant claimed to fear harm by reason of allegedly helping a person, G, to make photocopies of material about his younger aunt’s imprisonment. The applicant alleged that the person that she helped was taken away by the police and, as result of her assistance, she feared harm from the authorities. On 1 May 2015, a delegate noted the applicant failed to appear at the interview and found the applicant failed to meet the criteria for the grant of a protection visa.
The applicant applied to the Tribunal for review on 10 May 2015. By letter dated 10 October 2016, the applicant was invited to attend a hearing on 8 November 2016. The applicant appeared on that date to give evidence and present arguments. By letter dated 15 November 2016, the Tribunal wrote to the applicant inviting the applicant to comment on information identifying that the applicant received the tourist visa on 18 March 2014 but did not depart until 5 May 2014. The letter identified that this information is relevant because the Tribunal may find that the delay in departure is not consistent with a fear of harm from the Chinese authorities. It is not apparent that any response was sent on or prior to the time for response on 29 November 2016.
The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and the activities she allegedly undertook in relation to the making of 200 copies of material on 21 February 2014 and the police taking away the person she was helping. The applicant also alleged during the course of the hearing before the Tribunal that the police had come to her village looking for her. The Tribunal noted that this was not in her written statement and that when this omission was put to her at her hearing, the applicant alleged that the translator had failed to write it down because she gave an oral account and the contents were difficult.
The Tribunal considered the applicant’s explanation but noted that the applicant stated at the hearing that her written statement had been translated back to her and it was correct and she did not want to add anything. The Tribunal found the omission in this regard to be significant and raised concerns in relation to the veracity of the applicant’s claims as well as her credibility.
The Tribunal referred to the applicant’s evidence about the distribution of the pamphlets, including the reference to the relative who had been imprisoned and her medical treatment and condition. The Tribunal found the applicant was unable to explain how the random distribution of copies to members of the public would achieve the aim of having G’s relative released from detention. The Tribunal found the applicant provided no plausible explanation as to why the person the applicant assisted would engage in such risky behaviour when there was little to no prospect of having the relative released as a result of that behaviour. The Tribunal found the applicant, in relation to answering questions concerning the pamphlets, had not turned her mind to such questions because she was not talking about events that had actually occurred but was making up her evidence as she went along.
The Tribunal found as a result that the applicant was unable to discuss the alleged events at the hearing with any level of detail or consistency. The Tribunal found the applicant had fabricated her claims in order to found a claim for protection.
The Tribunal did not accept the applicant had assisted G to make copies of material to distribute or that as a result G was taken away by the police, or that the police made inquiries to find the applicant or that she fled China as a result.
The Tribunal did not accept the applicant has suffered any previous harm in China, nor that there is a real chance that she will be charged or imprisoned or that she will suffer serious harm from the authorities in the reasonably foreseeable future.
The Tribunal did not accept that the applicant has a well-founded fear of persecution for one or more of the five Convention reasons if she returns to China now or in the reasonably foreseeable future. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act.
The Tribunal found that it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
These proceedings were commenced on 3 January 2017. On 18 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that she understood the nature of the hearing as explained by the Court.
From the bar table, the applicant made reference to not receiving an email and described the email as one asking her to put on all her evidence. In the course of adducing the evidence, the Court went through the Court Book with the applicant and the applicant expressly confirmed that she received the letter dated 10 October 2016 in which the Tribunal identified that it was unable to make a favourable decision on the information alone and invited the applicant to attend a hearing. That letter expressly identified that the applicant should bring to the hearing a copy of any document or evidence the applicant wished to rely upon. It is apparent that the applicant attended the hearing.
On the face of the Tribunal’s reasons, the Tribunal sought to explore with the applicant the issues arising in respect of the applicant’s claims. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and the applicant had a real and meaningful hearing before the Tribunal.
The applicant’s reference to not receiving the email otherwise refers to the invitation to attend the interview before the delegate. This Court does not have the power to review the decision of the delegate. No jurisdictional error arises by reason of anything said by the applicant from the bar table.
The grounds
The grounds in the application are as follows:
1. AAT made up his mind before the hearing.
2. AAT was very impatient and unkind to me.
3. AAT disregard the experience I suffered and was judging me.
4. I suffered depression and didn’t know the procedure of the hearing, so AAT despised me and said why I didn’t provide evidence in the beginning but in the end. It’s unfair to accuse me of something I don’t know.
Grounds 1 and 2
Grounds 1 and 2 are, in substance, an allegation of bias. No evidence has been adduced in support of those allegations. On the face of the material before the Court, the Tribunal conducted the review with an open mind, reasonably capable of persuasion as to the merits.
The Tribunal’s reasons identify exploring with the applicant the credibility concerns. It was entirely proper for the Tribunal to do so. The exploring by the Tribunal with the applicant of its concerns in relation to the applicant’s credibility at the hearing and the adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by ground 1 or ground 2.
Ground 3
In relation to ground 3, the applicant identifies a disagreement with the adverse finding by the Tribunal. This does not of itself identify any jurisdictional error.
The Tribunal gave logical and rational reasons in support of the adverse credibility findings, which included the omission referred to above and the implausibility of the applicant’s explanation for the distribution of the pamphlets and her delay in departing from China after the grant of her tourist visa, which were set out and incorporated in annexure A to the Tribunal’s reasons and was further identified in paragraph 27. In these circumstances, the Tribunal’s adverse finding in respect of the applicant’s claims cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 3.
Ground 4
In relation to ground 4, there is no evidence before the Court to support the proposition that the Tribunal was aware that the applicant was depressed and it is not apparent that any such issue was raised by the applicant before the Tribunal. An issue not raised before the Tribunal is not capable of giving rise to any jurisdictional error.
Ground 4 otherwise seems to advance an allegation of bias which, for the reasons already given, is not made out. The applicant’s disagreement with the process for the Tribunal and the testing of her evidence does not identify any conduct by reason of which a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by ground 4.
Accordingly, the application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 October 2019 and the parties were provided sealed copies of the Court’s orders.
Associate:
Date: 25 November 2019
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