AAS18 v Minister for Immigration - [2020] FCCA 1933

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAS18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1933

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (Tribunal) – grounds 1, 2 and 3 seek impermissible merits review – whether the Tribunal considered whether the Minister’s delegate considered the case properly – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 441A, 441C, 476

Migration Regulations 1994 (Cth), reg.4.35D

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18;

(2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225;

(2013) 139 ALD 181

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30;

(2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408;

(2018) 75 AAR 434; (2018) 163 ALD 1

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

[1994] FCA 1253; (1994) 124 ALR 265

Applicant S146 of 2003 v Minister for Immigration & Multicultural Affairs

[2006] FCA 502

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 287

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906;

(2000) 100 FCR 495; (2000) 62 ALD 513

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261;

(2004) 80 ALD 534

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed

[2005] FCAFC 58; (2005) 143 FCR 314

Applicant:

AAS18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 15 of 2018

Judgment of:

Judge Nicholls

Hearing date:

9 July 2020

Date of Last Submission:

9 July 2020

Delivered at:

Sydney

Delivered on:

16 July 2020

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

Legal Representative for the Respondents:

Ms M. Kelly

ORDERS

The application made on 3 January 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 15 of 2018

AAS18

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 made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 January 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a protection visa (“the visa”).
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (Court Book – “CB” – “RE1”).

Background

The applicant is a citizen of China (CB 16). He arrived in Australia on 25 August 2014 on a student visa ([2] at CB 85). The applicant’s protection visa application was received by the Minister’s department (“the department”) on 27 November 2014 (CB 1–CB 29). Attached to the application was a statement of claims (CB 12–CB 13).
The applicant claimed that he worked in a: “…terrible working environment” (CB 12). In 2013, two of his colleagues were diagnosed with lung disease. In November 2013, the applicant, along with three of his colleagues reported the problems with the company to the “Labor Bureau”. A few days later they: “…were beaten by strangers who warned [them] not to make trouble any more. Otherwise, [they] would be killed” (CB 12–CB 13).
In December 2013, over 200 workers: “…gathered in front of the gate of the company to strike” (CB 13). The government deployed: “…a large number of armed police”. People were arrested and injured. As the applicant was one of the organisers he was detained for fifteen days for “disturbing public order”. While he was detained he was: “…often beaten by other inmates” (CB 13).
As a consequence of organising the strike, the applicant was dismissed from his employment. The applicant stated that government officials in China are “corrupted” and the boss of the company he worked for: “…[could] bribe government officials at all levels.” (CB 13). The applicant feared living in China.

The Delegate

The applicant was invited to attend an interview with the delegate on 30 November 2015 (CB 48–CB 51). The applicant did not attend the interview (CB 58). The delegate proceeded to make a decision based on the information contained in the application (CB 58). On 7 December 2015, the delegate refused to grant the applicant a protection visa (CB 52 –CB 67).
The delegate found that the applicant did not fear harm for a Refugee Convention reason (CB 60). The delegate therefore found that the applicant was not owed protection under s.36(2)(a) of the Act (CB 61).
The delegate noted that the applicant was able to legally depart China, and that his ability to do so, amongst other things, indicated that he was not of adverse interest to the authorities (CB 64). Country information indicated that the applicant would receive protection from the authorities in China (CB 65).
The delegate concluded that the applicant was not owed protection under s.36(2)(aa) of the Act (CB 66).

The Tribunal

The applicant applied to the Tribunal for review on 31 December 2015 (CB 68–CB 69). On 14 June 2017, the Tribunal wrote to the applicant regarding his availability for a hearing (CB 74–CB 75). The correspondence informed the applicant that his application was “being prepared for allocation to a [T]ribunal member…[and that] this may result in a hearing being scheduled”. The correspondence noted that the applicant was required to (CB 75):
“· Advise us as soon as possible if there are any reasons why you may not be able to attend a hearing at any time in the coming months.
Please note: once a hearing date has been set, we will only change the date if we are satisfied that there is a very good reason to do so.”
On 24 October 2017, the Tribunal sent, to the applicant’s email address that he provided in his application for review, an invitation to attend a hearing on 7 December 2017 (CB 76–CB 78).
On 7 December 2017, the applicant did not attend the hearing before the Tribunal (CB 79–CB 81).
On 11 December 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 83–CB 89).
At [6] of its decision record (CB 85) the Tribunal set out that as the applicant did not attend the scheduled hearing, the Tribunal “…decided to proceed to make a decision on the review.”
At [13] (CB 86–CB 87) the Tribunal outlined the applicant’s claims to fear harm. The Tribunal noted that because the applicant failed to attend the hearing, the Tribunal was unable to test the veracity of the applicant’s claims which were in “general terms” and were “unsubstantiated” ([20] at CB 87).
The Tribunal indicated that if the applicant had attended the hearing, it would have discussed the following with him (CB 87–CB 88):
“20. …the Tribunal would have asked him for more information about his complaint to the Labour Bureau and why he chose to complain to the Labour Bureau in light of his claim that previous complaints to the Labour Bureau had not resolved the problem. The Tribunal would have sought more details about the incident when he and his two co-workers were beaten by strangers including the circumstances in which this occurred, whether this was reported to the police, and if so, the outcome of the complaint.
21. …the details of the strike on 18 December 2013 including how he organized the strike, the purpose of the strike, his detention, the charge/s against him, whether he appeared before a Court and the sentence he received. The Tribunal would have ascertained how he was able to support himself financially from the time he was fired from his job until he left China in August 2014 and how he was able to afford to pay for his travel to Australia. The Tribunal would have found out whether he had any further problems with the management of [the applicant’s employer] or the Chinese authorities after he was released from detention and why he fears living in China.
22. …information from him about whether he is able to safely relocate within China, why he delayed arriving in Australia after his Visitor visa was granted and why he delayed applying for a Protection visa after he arrived in Australia. The Tribunal would have clarified why he now fears returning to China.”
The Tribunal found that the evidence was not “sufficiently detailed” to demonstrate that the applicant suffered harm in China, or that the applicant “is of adverse interest” to the previous company he worked for, or the Chinese authorities ([23] at CB 88). The Tribunal was not satisfied that the applicant left China or feared returning to China for the reasons he claimed. The Tribunal was also not satisfied that there was a real chance that the applicant would face serious harm if he returned to China for any of the reasons he claimed ([23] at CB 88).
The Tribunal found that the applicant was not owed protection under s.36(2)(a) of the Act ([24] at CB 88).
Further, the Tribunal found in light of the above findings and “the limited evidence before it”, that it was not satisfied that there was a real risk that the applicant would suffer significant harm for the reasons claimed ([26] at CB 88).
The Tribunal was not satisfied that the applicant was owed protection under s.36(2)(aa) of the Act ([27] at CB 88).

Application to the Court

The grounds of the applicant’s application to the Court of 3 January 2018, are in the following terms:
“ Jurisdictional errors were made in my case.
1. Tribunal did not treat my case properly because Tribunal did not consider that I was harmed in China.
2. Tribunal did not consider that I would be harmed if I return to China.
3. There exists unfairness because my claims were ignored.
My claims should be properly considered even if I did not attend hearing.
4. Tribunal does not consider whether the delegate dealt with my case properly.”

Before the Court

On 8 February 2018, a Registrar of this Court made orders allowing the applicant to file an amended application by 5 April 2018. The applicant has not filed any amended application. On 30 April 2020, this Court made orders allowing the parties to file written submissions 14 days, and 7 days prior to the hearing. The Minister filed written submissions on 2 July 2020. The applicant did not file written submissions.
The parties were given the opportunity to appear either in person or by telephone given the current COVID-19 situation. At the hearing, the applicant appeared by telephone. He was assisted by an interpreter in the Mandarin language who was physically present in Court. The Minister was represented by a solicitor who was also in Court.
The applicant, in effect, confirmed that he had not filed any other documents apart from his application to the Court. This was despite ample opportunity to have done so.
The applicant’s submission before the Court was that he thought (“I think”) that the Tribunal did not consider his case “seriously”. The Tribunal did not consider that he would be “persecuted” in China if he had to return. This was, in essence, a restatement of the assertions in the grounds of the application to the Court.
After hearing the Minister’s submissions I sought to summarise what was said for the applicant so as to give him another opportunity to address what was put against him. The applicant’s response remained that he had “nothing” to say.

The Grounds of the Application

The applicant’s grounds fail to engage with the fact that the Tribunal invited the applicant to a hearing scheduled for 7 December 2017. On the evidence before the Court, the invitation met all of the relevant statutory and regulatory requirements (ss.425, 425A, 441A and 441C of the Act and Regulation 4.35D of the Migration Regulations 1994 (Cth)).
Importantly, the invitation put the applicant on notice that (CB 77):
“We [the Tribunal] have considered the material before us but we are unable to make a favourable decision on this information alone.
You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case.”
Further (CB 78):
“If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us…”
The applicant did not respond to this invitation by completing and returning an enclosed “Response to hearing invitation” form (CB 78.4).
The Tribunal did attempt to send reminders by way of SMS messages to the telephone number he had provided (30 November on 6 December 2017). These attempts apparently failed ([5] at CB 85). However, there is nothing in the evidence to show that the applicant did not receive the hearing invitation sent to the email address he had provided.
Importantly, there was nothing from the applicant now before the Court to indicate that he did not receive the hearing invitation.
In circumstances where the applicant had been properly notified of the hearing, where the Tribunal told the applicant that it was unable to make a favourable decision unless he attended at the hearing, and he made no request for an adjournment, or sought to indicate that there was any difficulty in attending, it was reasonably open to the Tribunal to proceed to exercise one of the two relevant discretions available to it (s.426A(1A)(a) and s.426A(1A)(b)).
The Tribunal’s decision to proceed pursuant to s.426A(1A)(a) of the Act was reasonable in the circumstances. (With general reference to Minister for Immigration and Citizenship v Li [2013] HCA 18 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30). The applicant was invited to a hearing, was on notice of the importance, and consequences, of not attending, and without explanation did not attend. Nor has the applicant offered any evidence (or even submission) now to indicate that the Tribunal’s exercise of the discretion was unreasonable.
Grounds one, two and three of the application either misunderstand or misrepresent what the Tribunal has reasoned and found, and even at their highest, given the factual findings made by the Tribunal, seek impermissible merits review.
As the Minister correctly submitted they fail at the factual level. The Tribunal did consider the applicant’s claims to fear harm in China. Simply because the applicant made certain claims does not mean that the Tribunal had to accept them and, in effect, grant him the visa. The Tribunal is not obliged to uncritically accept the applicant’s claims (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 at [21]).
What the applicant’s grounds ignore is that he was on notice that his claims were not such as that the Tribunal could find that he satisfied the relevant criteria for the grant of the visa.
On the evidence before the Court, the Tribunal’s preliminary view was reasonably open to it. His claims to fear harm, as set out in his written statement which accompanied his protection visa application (CB 12– CB 13) assert that, in essence, he was detained and dismissed from his employment because he organised a work strike.
The applicant had been invited to an interview with the delegate. Without explanation he failed to attend (CB 58.5). Even in that circumstance the delegate gave him the benefit of the doubt and accepted the factual basis of his claim (CB 58.9).
However, even with this benefit, the applicant would have been on notice as a result of the delegate’s decision, that what he had set out in his written statement was not sufficient to satisfy the criteria for the grant of the visa, such that the visa would be granted to him (CB 61 and CB 66–CB 67).
The applicant’s failure to attend before the Tribunal in the circumstances set out above, provides the context for the Tribunal’s approach and consideration both in relation to the exercise of the discretion to proceed to determine the review, and in its subsequent assessment.
As the Minister submitted the Tribunal’s inability to find that the applicant satisfied either of the two relevant criteria for the grant of the visa was the inevitable consequence of his, unexplained failure to attend at the Tribunal hearing (ApplicantS146 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 502 and NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287).
Contrary to the assertion in the grounds, the applicant’s claims to fear harm were not “ignored” by the Tribunal, the Tribunal did consider his claims, such as they were, of past harm, and did consider whether the applicant would suffer serious or significant harm if he were to return.
Nor is there any “unfairness” in circumstances where the applicant was properly invited to a hearing, was on notice of its importance, and without explanation failed to attend.
Ground four asserts that the Tribunal did not consider whether the delegate dealt with his case properly.
As the Minister submitted the Tribunal was required to conduct the review “de novo”, or afresh. In these circumstances it was not required to consider the delegate’s reasoning.
In any event, as the Minister submitted even if there had been some error in what the delegate did, the Tribunal’s conduct of the review, absent any jurisdictional error in itself, would have cured any such defects (Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344; and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314).

Conclusion

There is no jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application to the Court. I will make that order.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 16 July 2020