ADB15 v Minister for Immigration

[2015] FCCA 851

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADB15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 851

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) 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, ss.424AA, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Applicant: ADB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 576 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms E. Warner-Knight
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 576 of 2015

ADB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks to challenge the decision of the Tribunal made on 10 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa. The grounds in the application are as follows:

   The RRT misunderstood my claims.

2. The application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court identified to the applicant that it was concerned that this matter failed to disclose an arguable jurisdictional error and that it was minded to consider whether or not the proceedings should be summarily dismissed.  I take into consideration in respect to the Court’s 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; [2010] HCA 28, at [24]-[25] and [59]-[60].

4. The applicant identified that he had two children here and that he was of the view the Tribunal should have accepted him in relation to what he said.  It was pointed out to the applicant that he was not believed by the Tribunal and that the Tribunal found he was not telling the truth.  The applicant did not identify any argument that advanced the existence of any jurisdictional error in respect of the decision of the Tribunal.

5. The applicant arrived in Australia on a prospective marriage visa in 2006 and applied for a protection visa in July 2007.  He was the subject of an interview with the Department on 19 February 2008 and the application was refused.  The applicant then sought a review and he attended a hearing on 29 January 2009 to a Tribunal differently constituted which affirmed the delegate’s decision on 18 February 2009.  On 18 June 2009, the Federal Magistrates Court dismissed the application for review. 

6. The applicant applied on 10 February 2014 for a further review following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71. The Tribunal carefully identified the applicant’s claims and evidence. It is clear that the applicant had a genuine hearing on 7 November 2014 and provided post hearing submissions. Relevantly, the Tribunal said it did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. The Tribunal made the following relevant findings:

   26.    The information the applicant provided to the delegate orally was put to him at the second hearing under s.424AA of the Act. He responded by stating that although he had said that he lived at home with his family, this did not mean that he did not move between [other locations] where his friends resided. The Tribunal does not accept this explanation as satisfactory. If this was in fact the case the applicant would not have neglected to mention it at other stages throughout the process. This explanation also does not address the applicant’s evidence at the first hearing that he had fled to [another town]. The applicant’s evidence casts doubt on the veracity of his claims.

   …

   29.    The information the applicant provided to the delegate orally was put to him at the second hearing under s.424AA of the Act. He responded by stating that he had sworn on the bible that he would not lie. The interpreter at the first Tribunal was Egyptian and he did not understand what was being communicated. In addition, he had said that his brother was going to ask Hezbollah to attack him if he did not return to Islam. He did not tell the first Tribunal that he was shot. He added ‘do you want me to be physically shot to believe me’. When it was put to him that he had never previously mentioned that he had experienced problems with interpreting at the first hearing, he said he mentioned this to the interpreter (at the first hearing) and did not know what would happen if he had told the previously constituted Tribunal. The Tribunal finds these explanations unsatisfactory. The applicant’s explanations as to his experiences in Lebanon give rise to further inconsistencies with his earlier evidence. The Tribunal does not accept that his evidence at the first hearing was affected by interpreting issues as the applicant had never previously mentioned that he had experienced any difficulties understanding, or giving his evidence through, the interpreter at the first hearing. Even if the Tribunal were to accept, which it does not, that the applicant’s evidence at the first hearing might have been miscommunicated, this does not explain the inconsistencies in his evidence at various other stages in the process. The applicant’s evidence casts serious doubt on his credibility and the truth of his evidence.

   …

   32.    Fourth, the applicant provided inconsistent evidence in relation to what he had disclosed to his former prospective wife, [Ms B], regarding his conversion to Christianity.

   …

   36.    At the second hearing the applicant’s representative requested additional time to comment on or respond to the information put to the applicant under s.424AA of the Act. In his submission [in] November 2014, the applicant’s representative did not respond to or comment on the specific information put to the applicant at the second hearing. It was stated, however, that ‘the applicant concedes to having provided a distorted account regarding his claim for protection’. It was submitted that due to the turbulent nature of his relationship with [Ms A] and parental responsibilities, the applicant has been under ‘considerable stress related anxiety’, which may have contributed to inconsistencies in his evidence. While the Tribunal appreciates that the applicant may have been experiencing stressful circumstances recently, this does not explain the particular problems the Tribunal has identified in the applicant's evidence above; and do not address the depth and the breadth of the Tribunal's concerns with regard to the credibility of his claims as presented throughout the process.

   37. The Tribunal has considered the Birth and Baptism Record or Certificate that has been provided by the applicant. However, having regard to the fundamental lack of credibility in the applicant’s evidence throughout the process in the Tribunal is not prepared any weight on this document and its contents. The Tribunal has also considered [Mr C]’s statement, which was submitted following the second hearing, that in 2004 he was informed by a member of his family that the applicant had converted to Christianity and had been shunned by his family. [Mr C] has provided no other details or explanations in relation to the applicant’s claimed conversion and its consequences to overcome the problematic aspects of the applicant's evidence throughout the process in this regard or lend credibility to his claims. Similarly, [Mr D]’s letter is devoid of any details or explanations as to his knowledge of the applicant’s conversion and his alleged treatment by his family. The Tribunal gives little weight to the letters from [Mr C and Mr D] in lending credibility to the applicant’s claim that he has converted to Christianity and/or that he fears harm on that basis.  

   38. The applicant claimed at the hearing that he has been attending [a church in Australia]. He claimed that he used to attend this church every week but more recently, due to family problems, he has been attending every two weeks. Following the hearing the applicant submitted a letter from [the] Parish Priest at [the church], stating that the applicant has been known to him for the past three months and that he regularly attends services at the Church. While the Tribunal accepts that the applicant had attended church services in the three months prior to the second hearing, this does not outweigh the numerous problems the Tribunal has identified in the evidence submitted; and does not address the depth and the breadth of the Tribunal's concerns with regard to his credibility. The applicant has provided no other evidence that he has been involved in church related activities at any other time. The Tribunal finds that the fact that he has attended a church for a short period prior to the second hearing does not establish that he is a Christian convert; that he will practise Christianity in Lebanon or that he will be perceived to be a Christian convert upon returning to Lebanon.

   39. For the reasons set out, the Tribunal does not accept that the applicant is a genuine convert to Christianity and that he has experienced, or will experience, any harm in Lebanon for that reason. The Tribunal finds that the applicant's claims in this regard are fabrications and does not accept these claims.

   40. The problematic nature of the applicant’s evidence extended to his claims in relation to the Lebanese Forces.  The applicant provided inconsistent evidence in relation to his membership of and involvement with the Lebanese Forces.

   …

   43.    For all the reasons set out above, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to manufacture, shift and tailor evidence in a manner which achieves his own purpose. The Tribunal finds that the applicant has fabricated and concocted his evidence to achieve an immigration outcome.

   44. The Tribunal, therefore, does not accept that the applicant converted to Christianity in Lebanon or that he practised Christianity in Lebanon. The Tribunal does not accept that the applicant has suffered any harm by anyone in Lebanon for the reason of his claimed conversion to Christianity. The Tribunal does not accept that the applicant is genuinely interested in Christianity or practises Christianity. The Tribunal finds that the fact that he has attended a church in [Australia] in the three months prior to the second hearing does not establish that he is a Christian convert or that he will practise Christianity in Lebanon. The applicant did not claim, and the Tribunal is not satisfied, that the activities he has engaged in in Australia have or will become known to anyone in Lebanon. Having regard to the totality of the material before it, the Tribunal finds that the applicant is not and will not be perceived to be a Christian or a Christian convert, and will not practise Christianity in Lebanon. The Tribunal does not accept that the applicant was a member of or involved in any way with the Lebanese Forces. The Tribunal does not accept that he will be accused of being a spy and of having relations with the Israeli intelligence as he had claimed in the documents submitted in support of his Ministerial intervention request.

   45. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm arising from his real or perceived religious beliefs, real or perceived political opinion or any other factor arising from his circumstances.

   …

   49. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   50. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

7. I am clearly satisfied the applicant had a genuine hearing and that the findings by the Tribunal were open.  It was open on the material before the Tribunal not to accept the applicant’s credibility and the findings cannot be said to lack an evident and intelligible justification.  The proceedings are clearly doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015