ABF15 v Minister for Immigration

[2015] FCCA 780

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABF15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 780

Catchwords:
MIGRATION – Refugee Review Tribunal – sub-class 580 Student Guardian visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28

First Applicant: ABF15

Second Applicant: ABH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 477 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant to pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 477 of 2015

ABF15

First Applicant

ABH15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction, under s.476 of the Migration Act1958, in which the applicants seek a Constitutional writ in respect of the decision of the Tribunal, made on 23 February 2015.

2. The application identifies the following grounds:

   1. The decision of the Tribunal, who has particularly weighted the credibility found in the previous protection visa application to determine my submission:

   a) is affected by the protection visa application in 2010, the Tribunal has denied our credibility.

   b) failed to take into account relevant considerations. Particularly, the Tribunal failed to consider the Department’s data breach which has adversely impact us.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court raised with the applicants that it was concerned that the application failed to identify an arguable jurisdictional error.  The first applicant has identified that she believed the decision was unfair and could not understand how come she had been rejected twice.  The first applicant identified that she and her daughter had been separated when her daughter was detained, and that she is of the view that she told the truth and that the Tribunal should have accepted her.

5. The Court takes into consideration in relation to the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

6. It is a matter for the Tribunal to determine, in respect of every applicant the issues of credibility.  The credibility of the applicants was a relevant matter for the Tribunal to evaluate in this case, and the findings were clearly open.  It cannot be said that the adverse findings of credibility in respect of the applicants lack an evidence and intelligible justification.

7. Accordingly, there is no substance in respect of the criticism identified in para.(1)(a) of the grounds in the application, and it is doomed to failure.

8. Paragraph (1)(b) has no substance and  is clearly contradicted by the following paragraphs of the Tribunal decision:

   28. I asked whether she was concerned about the data breach involving the second named applicant's personal information. She said that this may also cause persecution. The government will know that she spoke against it. I explained that the published information did not include the fact that she had applied for protection or details of her claims. She said that her family has been persecuted and her husband was afraid that she would be implicated; she will definitely be implicated. She said that the case has not been solved.

   33. She is also concerned about the Department's data breach, which she believes resulted in the publication of details of her asylum claims on the internet. Because of this, if they return they may be banned by the government as traitors, or by extreme patriots. I explained to the second named applicant that the data breach did not result in the disclosure of either the fact that she had applied for protection, or any details of her claims. I explained that the information that was disclosed was personal information such as her name, address, where and when she was detained, and other information as set out in the Department's letter of 12 March 2014 (folio 35, Department's file).

   35. I put to the second named applicant that there was no clear evidence that her personal data had been accessed by the Chinese government or anyone who might wish to harm her. She said that when people are returned to China from detention they do not hold their own passports; the passports are given to airline staff until they pass through customs and this might make the Chinese authorities suspicious.

   54. Information about the nature of the second named applicant's personal data that was published by the Department does not indicate that any risk is thereby posed to the first named applicant. There is nothing before me to suggest that the fact that the second named applicant was included in a protection visa application lodged by the first named applicant, or any details of that application were released. There is no basis on which to conclude that any information released about the second named applicant would have adverse consequences amounting to any kind of significant harm for the first named applicant. Moreover, any conclusions about exactly who may have accessed that information, and what use they may make of it (if any), is pure speculation.

   59. I am not satisfied that the second named applicant has a well-founded fear of persecution for a Convention reason as a result of the data breach; indeed, I am not satisfied that she would face any kind of harm on return to China as a consequence of the inadvertent publication of personal inforn1ation on the Department's website. I find that the release of this information does not establish substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to China there is a real risk that she will suffer significant harm.

9. It is clear that the Tribunal took into account the significance of the data breach, and made findings of fact that were open to it in respect of that limited disclosure of information that accidentally occurred.

10. It is important in this case to identify the background in respect of which the first applicant came to be in Australia.  The first applicant arrived in Australia on the 7^th of August 2007, travelling on a passport issued to her by the People’s Republic of China and holding a sub-class 580 Student Guardian visa.  She applied for a Protection visa on 3 March 2010.  That application was refused on 1 June 2010.  It was the subject of a different Tribunal’s review on 21 September 2010. 

11. For reasons identified, in para.2 of the Tribunal’s decision, the first applicant was permitted to lodge a further application on 17 January 2014. The second applicant was included as a member of the first applicant’s family, but made no claims of her own for protection. The delegate refused to grant a protection visa on 6 January 2015.  The  applicants applied for a review and  the applicants appeared before the Tribunal on 13 February 2015 to give evidence and present arguments, and was assisted with an interpreter.

12. The Tribunal carefully identified the applicants’ claims and identified the information before the Tribunal.  Relevantly, the Tribunal said:

    16. The first named applicant presented her passport. She confirmed that she arrived in Australia holding a student guardian visa which had expired on 15 March 2010, at about the same time as the second named applicant’s associated student visa.

    19. Later in the hearing I invited the first named applicant, pursuant to s.424AA of the Act, to comment on the discrepancy in the evidence she had given at the two Tribunal hearings about why her daughter was not included in her first protection visa application. I explained that this was relevant because it might indicate that she was not truthful in her evidence; and that she had changed her evidence to overcome the issue raised by the delegate - that the delay in seeking protection for her daughter cast doubt on the genuineness of her claimed fears about returning to China. The first named applicant chose to comment on the information at the hearing. However, she did not provide a clear response, merely reiterating her previous contradictory evidence. She said that the protection visa application was written by her friend who did it incorrectly; she is illiterate; her daughter was too young; she thought her daughter's name was included. I explained that this did not resolve the apparent contradiction, as she was still saying two different things - on the one hand, that her friend had advised her not to include her daughter in the application; and on the other, that she thought her daughter was included.

    20. … She then said "In future, no"; but she reiterated that there was a "tremendous" problem in the past.

    26. I put to her that she seemed to be saying contradictory things - one the one hand that there was no point in trying to take action against the government, but on the other that she would definitely do something if she returned. I said that this, together with her inaction in Australia, made it difficult to accept that she would actually do anything if she returned. She said that her husband is terrified, he told her not to go back; if she goes back she will definitely do something.

    27. I asked if she had any other fears about returning. She said that her major concern is that her husband was detained and she may be implicated. I asked why she would be implicated – the events happened five years ago, when she was in Australia, and her husband has now been released. She said that they did not accept this unfair settlement. She said that they would be homeless if they returned. I asked whether she could stay with relatives, such as her mother where her husband is currently staying. She said that the government might hear they are back and arrest them. I said that for the reasons mentioned above it was difficult to accept that the government would arrest them.

    28. I asked whether she was concerned about the data breach involving the second named applicant's personal information. She said that this may also cause persecution. The government will know that she spoke against it. I explained that the published information did not include the fact that she had applied for protection or details of her claims. She said that her family has been persecuted and her husband was afraid that she would be implicated; she will definitely be implicated. She said that the case has not been solved.

    29. I noted that previous decision-makers had not believed that her house had been demolished. She asked why not. I explained that one reason was that she had submitted photographs that did not support her claim. The first named applicant indicated that she did not know what I was talking about; she said that she had not been shown photos at the last Tribunal hearing, but the member "forced" her to draw a map of her village. I put to the first named applicant that the previous Tribunal had done no such thing; a map apparently drawn by her daughter had been submitted by her. The previous Tribunal's decision record showed there had been a lengthy discussion about the photographs of the claimed demolition.

    30. I explained to the first named applicant that I may or may not believe that her house had been demolished and her husband detained. I noted that she had submitted a "detention warrant" which I would consider, but I drew her attention to country information indicating that all manner of fraudulent documents are available in China. I explained that even if I accepted her claims about the demolition of her house and the detention of her husband, I had difficulty accepting that there was a real risk that she would face significant harm on return. The relevant events happened five years ago, when she was not in the country and her husband had now been released; in these circumstances it was difficult to accept that she would be implicated. I had difficulty accepting that she would protest if she returned and face harm for that reason, given that she has done nothing in Australia, her relatives in China are not continuing to protest, and she says that it is pointless to take any action against the government. The first named applicant said that she is telling the truth and she will definitely be harmed if she returns.

    31. The second named applicant stated that her student visa expired on 13 March 2010. I noted that her mother had first applied for a protection visa just before the second named applicant's visa ceased; I asked whether she knew why she was not included in her mother's first application. She said that she was too young and her mother did not think a lot about it.

    32. She said that she does not want to return to China because of her "mother's case" - they lost their prope1ty and have no money. If they return they will try to get their house back but the developer has government connections and money and will find someone to kill them. She said that their home was demolished for the building of a highway.

    33. She is also concerned about the Department's data breach, which she believes resulted in the publication of details of her asylum claims on the internet. Because of this, if they return they may be banned by the government as traitors, or by extreme patriots. I explained to the second named applicant that the data breach did not result in the disclosure of either the fact that she had applied for protection, or any details of her claims. I explained that the information that was disclosed was personal information such as her name, address, where and when she was detained, and other i information as set out in the Department's letter of 12 March 2014 (folio 35, Department's file).

    34. She said that the Chinese government may notice that she had been detained and be suspicious. I noted that she had come on a student visa which had expired in 2010; it was likely that the Chinese government, if it became aware of her detention at all, would assume that it was because her visa had expired. This is evident from her passport.

    35. I put to the second named applicant that there was no clear evidence that her personal data had been accessed by the Chinese government or anyone who might wish to harm her. She said that when people are returned to China from detention they do not hold their own passports; the passports are given to airline staff until they pass through customs and this might make the Chinese authorities suspicious.

13. The Tribunal identified the importance in evaluating the credit of the second applicant the delay in applying for a Protection visa, at [39] and [40]:

    39. I put to the second named applicant that the fact that she was applying for protection four years after her student visa expired might lead me to think that she did not genuinely fear harm on return. I noted that she could have been detained and deported at any time during that four year period. She said that she was young and her mother did not understand the law; they relied on friends but later they got this second opportunity. I noted that she did not need a second opportunity, she could have applied at any time. She said that she thought she was included in her mother's first application. I noted that when I asked her about this before she had given reasons why she was not included; now she was saying that she thought she was included. She repeated that she thought she was included in her mother's application.

    40.  I noted that she is not a young girl, she speaks some English and I find it difficult to believe that if she feared returning to China she would not have made inquiries about applying for protection at an earlier point. She said that she was afraid because she did not have a valid visa. I pointed out that this was why she needed to take steps to remain in Australia if she was afraid to return to China. She said that she thought she had already applied; it was only when she was detained that she realised she had not applied.

14. Following which, the applicant relevantly found:

    42. Having seen their passports, I am satisfied that both applicants are nationals of China. Their claims to protection will be assessed against China.

    43. The issues to be determined are whether I am satisfied that there are substantial grounds for believing that the first named applicant faces a real risk of significant harm if she returns to China; and whether the second named applicant has a well-founded fear of Convention persecution; or faces a real risk of significant harm, if she returns to China.

    45. I have significant doubts about the credibility of both applicants. In particular, there is the issue of the delay in making protection claims for the second named applicant for four years after her last visa ceased.

    …

    I do not consider that the delay in applying for protection for the second named applicant has been adequately explained, and I consider that this casts doubt on the basis of their claims to protection, given that both applicants rely on the same events as the main basis of their claim – the demolition of the family home and the arrest and detention of their husband/father in 2009.

    46. My finding in relation to the second named applicant's lack of credibility is confined by her failure to mention the reasons for which she now claim she fears returning to China when she was detained by the Department and asked at interview about any reasons for which she could not return. She did not mention fears for her life or safety based on the demolition of the home or her father's arrest; instead she stated that her father was bankrupt and they no longer owned their house. While the propositions are not necessarily inconsistent, the statements in the compliance interview have a totally different emphasis to the protection claims. I would expect that if the second named applicant really feared returning to China because she feared arrest, detention, being beaten or killed for the reasons claimed, she would have mentioned this explicitly when asked, on her first contact with the Department, whether she had any concerns about returning to China. I do not accept her explanation for not having done so

15. The Tribunal carefully addressed the one-child policy issue:

    49.  In these circumstances, I am not satisfied that there are substantial grounds for believing that there is a real risk that the first named applicant would suffer significant harm if she returns to China because of a past breach of the one child policy.

16. The Tribunal addressed the applicants’ claims in relation to the demolition of a house:

    52. Nor do I accept the first named applicant's claim that she would protest against the demolition and demand compensation if she were to return, and that this would result in her being beaten and detained.

    53. I do not accept that the first named applicant would be homeless if she returned. She gave evidence that her husband is working part time; he has borrowed money to send their second child to study in Australia. She claims that her husband is living with her mother, and she gave evidence that she has other relatives in China. In these circumstances, I find that, if necessary, the first named applicant could also live with relatives if it were the case that she has no home of her own for any reason. In these circumstances I am not satisfied that there are substantial grounds for believing that there is a real risk that the first named applicant would suffer significant harm if she returns to China because she would be homeless.

1. The Tribunal turned to the issue of the data breach and relatively found:

   54. Information about the nature of the second named applicant's personal data that was published by the Department does not indicate that any risk is thereby posed to the first named applicant. There is nothing before me to suggest that the fact that the second named applicant was included in a protection visa application lodged by the first named applicant, or any details of that application were released. There is no basis on which to conclude that any information released about the second named applicant would have adverse consequences amounting to any kind of significant harm for the first named applicant. Moreover, any conclusions about exactly who may have accessed that information, and what use they may make of it (if any), is pure speculation.

2. The Tribunal also considered the second applicant’s claims in relation to the data breach:

   59. I am not satisfied that the second named applicant has a well-founded fear of persecution for a Convention reason as a result of the data breach; indeed, I am not satisfied that she would face any kind of harm on return to China as a consequence of the inadvertent publication of personal information on the Department's website. I find that the release of this information does not establish substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to China there is a real risk that she will suffer significant harm.

3. The Tribunal relatively found:

   66. I am not satisfied that there is a real chance that the second named applicant faces Convention  persecution in connection with the claimed demolition of her family home and the detention of her father; or because of any ongoing consequence of that. Nor am I satisfied that there is a real risk that the second named applicant any kind of significant harm, as defined for the purposes of complementary protection, in connection with these matters.

   67. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. The first named applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa. The second named applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa). It follows that both applicants are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

4. I am satisfied that the findings made by the Tribunal were open, and that there is no substance in the grounds identified in the application.  The first applicant sought to identify that she wished to obtain further documents and sought an adjournment.  There is no utility in the Court granting an adjournment in respect to proceedings that are doomed to failure, as it will only add to the costs of the parties and utilise valuable Court time.  These proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect for success. The proceedings are summarily dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 April 2015