AEA15 v Minister for Immigration

[2015] FCCA 886

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 886

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – 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.36(2)(a) or ss.36(2)(aa), 476

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

Applicant: AEA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 628 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms S. Sangha

Mills Oakley

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 628 of 2015

AEA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
As Corrected

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ with respect of the decision of the Tribunal delivered on 18 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa.  The application identifies the following grounds:

   I. I am scared to return back to China, because I am afraid of being persecuted by the Chinese authority. The reason why I failed to attend the Tribunal hearing was that I remembered the wrong time. Therefore, I did not appear before the Tribunal at the scheduled time. When I realised the mistake I have made, I decide to apply for a review to Federal Court of Australia and hope that I can have another chance to seek fair justices.

   2. One of the reasons why RRT refused my application was that there is no evidence in relation to my family's practice of Christianity in China. My defense is that all the materials which could reveal my family's practice of Christianity, together with the document to promise not to attend the underground church anymore were confiscated by the local police as evidence for further investigation towards the Christians. Also, there is no possibility to obtain the arrest warrant to prove that my family was arrested and detained in China.

   3. Besides, due to the health issue occurred during the course of RR T hearing, I felt unwell and could not concentrate myself on answering all raised questions properly. I need to assert that I am a Christian believer influenced by my father, who is a sincere Christian in China. I hope the Federal Circuit Court of Australia could consider my situation.

2. The application identifies under the first Court date:

   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, after having looked at the application and read the Tribunal’s decision, the Court was concerned that it may be an appropriate matter to exercise the Court’s summary jurisdiction powers.  In response to the invitation as to whether there was anything the applicant wished to say as to why the decision of the Tribunal was wrong, the applicant said “No, nothing”.

4. In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

5. This is a case where the Tribunal noted that the applicant had arrived in Australia for more than 10 years before he made a protection visa application.  The applicant applied for a protection visa on 11 December 2013.  The applicant failed to attend the interview with the Department for his protection visa which was refused on 6 June 2014.  The applicant applied for a review before the Tribunal on 4 July 2014, and appeared before the Tribunal on 19 January 2015 to give evidence and present arguments, and was assisted with an interpreter.

6. The Tribunal however noted that the applicant responded to most of the questions in English.  The applicant complained of being unwell at the hearing and the Tribunal adjourned the hearing to 4 February 2015.  The applicant contacted the Tribunal on the morning of the hearing of 4 February to indicate that he was again unwell and requested the hearing be rescheduled.  It was rescheduled to 11 February 2015.  The applicant then did not appear at the rescheduled hearing on 11 February nor did the applicant contact the Tribunal to explain his failure to attend.

7. The Tribunal considered whether or not it should adjourn the matter or proceed and it was open to the Tribunal to make the decision that it did to proceed with the review without taking any further action or to adjourn the review.  The Tribunal carefully identified the relevant law and set out the applicant’s claims and evidence.  The Tribunal had serious credibility concerns in respect of the applicant’s evidence which were discussed in detail in the Tribunal’s reasons in paragraphs 34-45.

8. Relevantly, the Tribunal found that it was not satisfied that the applicant had been truthful in his claims.  The Tribunal was not satisfied that the applicant was a credible witness in relation to core aspects of his claims.  The Tribunal made adverse findings:

   49. Based on the evidence before me, when considered cumulatively and in the absence of the Tribunal’s ability to explore the concerns and inconsistencies outlined above because the applicant did not attend the scheduled adjourned hearing requested by him, the Tribunal is not satisfied that the applicant has been truthful in his claims.  It is not satisfied that he is a credible witness in relation to core aspects of his claims.  The applicant demonstrated near ignorance of Christian beliefs, could not describe the church that he attends or name the Minister.  Based on the evidence before me, the Tribunal is not satisfied that the applicant is a Christian, has been attending church for more than 3 years in Australia or that he would practice as a Christian if returned to China.  In the light of this finding, it has not been necessary to consider the country information in relation to underground Christians in China, in particular Shanghai, outlined in Annexure A.

   50. In addition and based on the evidence before me, the Tribunal is not satisfied that:  the applicant’s family are Christians who regularly attend an underground church; the applicant attended an underground Christian gathering in Shanghai on 17 November 2013 with his parents; the applicant and his mother were arrested on 17 November 2013 and detained for 24 hours; his father has been arrested and detained on two occasions, the last being for 15 days from 17 November 2013.

   51. Because the Tribunal does not accept that the applicant has attended Christian church services in Australia or that he holds genuine Christian beliefs the Tribunal finds s. 91R (3) of the Act is not enlivened for consideration.

   52. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for a Convention reason if returned to China.  Nor am I 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.

9. It was in those circumstances that the Tribunal concluded that it was not satisfied that Australia had any protection obligations to the applicant and found that the applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act.  Those findings were clearly open to the Tribunal.  The applicant clearly had the benefit of an opportunity to attend the adjourned hearing, and it was open to the Tribunal to proceed in the absence of the applicant. 

10. The findings made by the Tribunal cannot be said to lack an evident and intelligible justification.  The findings were clearly open on the material before the Tribunal.  I am clearly satisfied that the proceedings are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  15 April 2015

CORRECTIONS

1. Para. 10 amended by deleting “make” and substituting “lack.”