Abc15 v Minister for Immigration

[2015] FCCA 1340

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABC15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1340

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error by reason that the Tribunal failed to consider an integer of the applicant’s claims, deprived the applicant of natural justice and denied the applicant procedural fairness – no jurisdictional error in the Tribunal’s decision – application dismissed.

Legislation:

Constitution, s.75(v)

Migration Act 1958 (Cth), ss.65, 424A, 425, 474, 476

Applicant: ABC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 476 of 2015

Judgment of: Judge Smith

Hearing date: 6 May 2015

Date of Last Submission: 6 May 2015

Delivered at: Sydney

Delivered on: 6 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr E. Elliott, DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 476 of 2015

ABC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application under s.476 of the Migration Act 1958 (“the Act”) for a review of a decision of the second respondent (“Tribunal”) made on 9 February 2015. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) made on 8 January 2015 to refuse to grant the applicant a protection visa. 

2. The jurisdiction of this Court under s.476 of the Act is the same as that of the High Court under s.75(v) of the Constitution. That fact, together with the limitations imposed by s.474 of the Act, means that in order to succeed the applicant has to show that the Tribunal’s decision was affected by jurisdictional error. Examples of jurisdictional errors are a denial of procedural fairness or a failure to consider relevant considerations, such as a claim made by a visa applicant. It is not enough to establish jurisdictional error simply to say that the Tribunal made a wrong finding of fact so long as the Tribunal’s findings of fact were based on logical grounds.

Background

1. The applicant is a citizen of China who arrived in Australia on 23 June 2008. His visa expired on 31 December 2008 and on 30 November 2009 he was found to be unlawfully present in Australia but granted a bridging visa with reporting conditions. He did not comply with those conditions. 

2. On 25 November 2010, the applicant was located on a second occasion. He was given a further bridging visa on the condition that he make an application for a substantive visa. He did not do so. On 29 July 2011 the applicant was again located. This time, however, he was refused a bridging visa and was detained at the Villawood Immigration Detention Facility. 

3. On 1 August 2011, he lodged a protection visa application. That application was refused on 15 August 2011. The applicant lodged an application for a review of that decision with the Tribunal on 29 August 2011. The Tribunal made its decision, affirming the primary decision, on 9 December 2011. In the meantime, the applicant had escaped from the Villawood Immigration Detention Facility and was located two years later on 31 October 2013. He was once again taken into detention. 

4. On 6 November 2013, he lodged a second application for a protection visa. In that protection visa application he made two claims: first, that he feared harm from creditors and their debt collectors and, secondly, that he had clashed with the police and therefore feared them as well. In a later version of that application, the applicant also claimed that the reason that he feared harm in China was that he was a Falun Gong practitioner. 

5. On 12 March 2014, the Department of Immigration wrote to the applicant advising him that some information about him had been unintentionally made available on the Department’s website. The applicant responded to that letter by letter written by an agent. In that letter he claimed amongst other things that the information was accessed a number of times in a number of different countries and that there was no way of knowing from whom he could face a real risk of harm if he returned home. 

6. The applicant was interviewed by an officer of the Department on 27 March 2014 and a delegate of the Minister made a decision to refuse the visa on 8 January 2015. The delegate’s decision was based upon the following findings of fact: first, that the applicant was not a credible witness; secondly, the applicant was not a Falun Gong practitioner; thirdly, the applicant did not owe any money to a loan shark; and fourthly, while the applicant was in detention, he may have had personal details unintentionally available publicly for a short time, however, the applicant’s protection claims had not been publicly available and the impact of the inadvertent publishing of detainee information was unknown as was how widespread the dissemination of it was. It was also unknown who had accessed the information. 

7. The applicant applied to the Tribunal for review of the delegate’s decision. Together with the application for review, the applicant sent to the Tribunal a copy of the delegate’s reasons for decision.  Part of those reasons included the following passage:

   The applicant’s attention was drawn to the compliance client interview conducted on 3 October 2013.  During that interview, he was asked whether there were any reasons why he cannot return to his home country.  To that question he had responded that he liked Australia. 

8. The applicant attended a hearing before the Tribunal on 5 February 2015. Also present at the hearing were the applicant’s son and the son’s wife. Those two people were included in the protection visa application as being dependent upon the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. While the applicant had a migration agent as a representative, that representative did not attend the hearing. 

9. During the course of the hearing, the Tribunal asked the applicant a number of questions about his claims, which he answered. The Tribunal also indicated to the applicant a number of matters which it found gave rise to difficulties with the applicant’s claims and evidence. For example, the Tribunal told the applicant that his actions had not been consistent with his claims in relation to Falun Gong. It also said that the applicant had given bare and basic evidence regarding his contacts both in Australia and China with that organisation and that he appeared to have no knowledge of its exercises. 

10. The Tribunal also indicated to the applicant that his evidence about the debt he claimed to have owed was inconsistent and nonsensical. 

11. The Tribunal handed down its decision on 9 February 2015. Its decision was to affirm the decision not to grant the applicant a protection visa. Its reasons for doing so were as follows: first, it found that the applicant was not a credible witness and that he had fabricated all of his claims; second, in explanation of that finding, the Tribunal was not satisfied that the applicant had ever had contact with the Falun Gong and it did not accept any of his evidence in relation to those claims. Those findings were based on the lack of relevant detail that the Tribunal expected could be given if the applicant’s claims were true. 

12. Next, in relation to the debt, the Tribunal was not satisfied that the applicant had any debt and did not accept any of his evidence in relation to those claims. That finding, as the Tribunal had mentioned to the applicant at the hearing, was based on its view that the applicant had given inconsistent and contradictory evidence as well as the nonsensical nature of the evidence. 

13. Finally, in respect of data breach, the Tribunal considered the written submissions submitted by the applicant prior to the hearing and, having done so, was not satisfied that any of the claims were more than speculation. It may be noted in that respect that when asked at the hearing whether he had any concerns about the data breach, the applicant said “no” and explained that the written submissions had been made by his lawyer. For those reasons, the Tribunal found that the applicant did not satisfy any of the criteria for a protection visa and affirmed the decision under review. 

Consideration

1. The grounds of the application are as follows:

   Final orders sought by applicant/s

   …

   1.Some integers of our claims were not properly taken into account by the RRT member.

   2.We plead for an order not to be removed from Australia.

   3.We plead for an order to consider us for complimentary protection, to redirect the RRT decision, and order the Department to take this matter for further consideration.

   Grounds of application

   1.We have more evidence and enough information for a fair complementary protection review.

   2.The RRT deprived us of natural justice.

   3.Trying to send us back home will result in jeopardizing our lives, pushing us into life threatening situations, being physically harmed, mentally tortured, and emotionally unstable for the rest of our lives.

   4.I have genuine concerns as to how the data breach has affected me. Due to a misunderstanding when asked about it at the RRT interview, I fear I was not able to convey the gravity of this matter.  My son and his wife are going to have a baby soon, and I am concerned about the danger that the information leaked through the data breach has brought to all of our lives.

   5.While we are aware of the risk imposed upon us by the data breach, due to the fact that the Department of Immigration has not disclosed the complete details of it, we are in no position to assess the severity or the extent of the danger that it has caused us.

First set of grounds

1. As can be seen from those grounds, there are two sets of numbers.  The first paras.1, 2 and 3, appear at first glance to be simply directed to the orders sought by the applicant. However, the first of those could also be understood to be a claim that the Tribunal did not consider a claim made by the applicant. That ground must be rejected. 

2. The claims made by the applicant were narrow in their scope and focused on the applicant’s Falun Gong membership, debts he claimed to have owed, as well as the consequences of the data breach by the Department. The factual bases for the first of those two claims were comprehensively rejected by the Tribunal. The third was rejected because the Tribunal thought that the risk of harm was no more than speculative. In my view, there remained no claim or integer of any claim that was not considered or properly taken into account by the Tribunal. 

Second set of grounds

1. The remaining five grounds may be broken into two parts. The first part, constituted by paras.1, 3, 4 and 5, are allegations by the applicant that he in fact met the criteria for the grant of the visa. Thus, for example, para.1 says that the applicant has more evidence and enough information for a fair complementary protection review. These grounds do not raise any arguable jurisdictional error. The question of whether or not the applicant satisfied the criteria for a grant of a visa was a matter entirely for the Tribunal. 

2. Because it was reviewing the delegate’s decision, it had to be satisfied in accordance with s.65 of the Act that the applicant met those criteria. The Court’s role, as explained briefly above, is to determine whether that satisfaction was arrived at legally, namely on a proper understanding of the law and on the basis of findings of facts and inferences which were logically based. There are also questions of procedural fairness to be considered but it suffices to say in respect of these grounds that the court has no jurisdiction to consider them. They are rejected.

3. The next category is found in para.2. That ground is that the Tribunal deprived the applicant of natural justice. The requirements of natural justice insofar as they relate to the natural hearing rule are prescribed in div.4 of pt.7 of the Act. The two critical provisions are ss.424A and 425. The first relates to the Tribunal’s obligation to give the applicant an opportunity to address adverse information.

4. In this respect, the only possible adverse information which could fall within the terms in s.424A(1) are set out in [37] of the Tribunal’s reasons:

   The Tribunal raised that the Departmental decision had noted that during the Compliance Client Interview, (recorded as 3 October 2013 however was held on 31 October 2013), the applicant was asked why he did not wish to return to China and had responded by saying that he ‘liked Australia’.  The Tribunal referred to the Departmental decision recording that the applicant failed to raise any other reasons, including those related to Falun Gong or debts, and then failed to provide adequate reasons as to why he did not raise his concerns earlier.  The Tribunal stated that the applicant’s omission to raise issues regarding Falun Gong and debt collection suggested that these were not genuine concerns.

   However, as set out above, the departmental decision was provided by the applicant to the Tribunal for the purposes of the review. For that reason, the information in that decision was captured by s.424A(3) of the Act and, in light of that, s.424A(1) did not apply. For those reasons, there was no failure to comply with s.424A of the Act.

5. Section 425 of the Act requires the Tribunal to invite the applicant to attend a hearing to give evidence and make submissions about the issues that arise on the review. In this case, the evidence of what occurred at the hearing is set out in the Tribunal’s decision from [16] to [43]. It is clear from those paragraphs, as outlined briefly earlier in these reasons, that not only did the Tribunal give the applicant an opportunity to say what he wanted to say about his claims but also that it gave him the opportunity to address its doubts and concerns about his evidence. For those reasons, I can see no evidence of a breach of s.425 and nor, for that matter, was there breach of any other requirement of the rules of procedural fairness.

6. On one view, para.4 of the application might also have been an allegation of denial of procedural fairness. That ground stated that the applicant had genuine concerns as to how the data breach has affected him:

   Due to a misunderstanding, when asked about it at the interview, I fear I was not able to convey the gravity of this matter.  My son and his wife are going to have a baby soon, and I am concerned about the danger that the information leaked through the data breach has brought to all our lives.

7. It is possible to understand that ground as saying that the applicant was somehow prevented from giving evidence because his daughter‑in‑law was about to give birth. In light of that possibility, I sought clarification from the applicant at the hearing about what he meant. He said that it meant that he had concern that if information was leaked, “all three of us”, namely, the applicant, his son and his son’s wife, “if they go to China, they would be persecuted.” That appears to me to be a claim not related to procedural fairness but, again, to the merits of the Tribunal’s decision.

Ground raised at hearing

1. The applicant added that he had had a stroke, that his brain does not work all the time, and that his memory is not good. The applicant had given similar evidence before the Tribunal: see [24] of the Tribunal’s reasons. Unfortunately, there is no evidence before me, apart from that contained in the Court Book (“Exhibit 1”), and particularly in the Tribunal’s reasons, that the applicant, in fact, had a stroke. Even accepting that that had occurred, there is nothing to suggest that the applicant’s ability to give evidence had been sufficiently affected by it that he was denied a real opportunity to give evidence and make submissions at the hearing before the Tribunal.

2. It may be noted that the applicant was represented during the course of the review and that his son and son’s wife were present at the hearing.  Nevertheless, there was never any suggestion that the applicant might not be able to give proper evidence and to explain all of his claims to the Tribunal. For those reasons, this ground does not give rise to jurisdictional error.

Conclusion

1. I conclude, therefore, that there is no jurisdictional error in the Tribunal’s decision, and that the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  25 May 2015