AEM15 v Minister for Immigration

[2015] FCCA 917

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEM15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 917

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.36(2)(aa), 476

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

Applicant: AEM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 696 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 Z. Taylor
Clayton Utz

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 696 of 2015

AEM15

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 this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 16 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The application identifies the following grounds:

   1. The decision of the Tribunal relied upon the previous decision regarding the credibility to infer the claims of protection visa under Complementary Protection Criterion:

   a) was affected by the procedural unfairness because the Tribunal has put weight on the credibility on the previous refused application to infer my current application under complementary criteria.

   b) failed to take into account relevant considerations my current claims, but rather took into account of my previous refused application.

2. 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

3. The Court informed the applicant that having looked at the application and read the decision the Court was concerned that the application appeared not to disclose arguable jurisdictional error and the Court was minded to consider exercising its summary jurisdiction. 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, at [24]-[25] and [59]-[60].

4. The applicant said that what he told the Tribunal was true.  The Court raised with the applicant a further discretionary concern that following an earlier finding that he was unlawfully in Australia he disappeared until he was detained.  The applicant indicated that it was one to two years before he was detained.  The Court asked the applicant why that would not be a relevant matter to take into account in any discretionary consideration if there was any substance in the application. The applicant did not provide any meaningful response.  No further submissions were advanced as to why there was any arguable jurisdictional error.

5. It was a matter for the Tribunal to determine what weight it gave to the applicant’s evidence and the adverse findings as to the applicant’s credit were clearly open on the material before the Tribunal.  It is also clear from the decision of the Tribunal that the Tribunal properly took into account the applicant’s claims. The Tribunal properly considered the applicant’s complementary protection claims and the grounds are really an impermissible challenge to findings of fact. There was no substance in the alleged grounds in the application and the grounds are clearly doomed to failure.

6. The applicant arrived in Australia on a student visa in 2008. He applied for a protection visa on 2 June 2008 which was refused on 24 July 2008. The decision was affirmed by an earlier Tribunal decision on 21 November 2008 and the applicant unsuccessfully appealed where the appeal was dismissed on 6 May 2009. The applicant then unlawfully remained in Australia until he was detained. The Tribunal identified that the applicant made a fresh application under s.36(2)(aa) on 13 January 2014 which the delegate refused to grant on 9 May 2014.

7. The applicant appeared before the Tribunal on 16 February 2015 to give evidence and present arguments which hearing was conducted with the benefit of an interpreter.  The Tribunal carefully set out the applicant’s claims and relevantly the appropriation of his family home which was a new claim, and his alleged membership of an unauthorised Catholic church in China in respect of which the applicant’s credit had been rejected by the earlier Tribunal. It was open to the current Tribunal to accept those findings of fact as correct and to reject the applicant’s evidence in respect of his alleged involvement in the underground church in China.

8. The Tribunal made adverse findings in relation to the applicant’s claims relevantly:

   13. …In addition, according to his evidence, although he raised the subject of past and potential threats, he did not satisfy me that he would refrain from pursuing the matter out of fear of significant harm; rather, very clearly he said that it would be impossible to reverse the process overseen by local government to which his brothers had several years ago reluctantly subscribed.

   14. Having considered all of the evidence relevant to this strand of [the applicant’s] claims, I am not satisfied that I have has substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that he will suffer significant harm.

   15. I asked [the applicant] several times during the hearing if he had any other fears about returning to China and he said variously that he did not, or that he had no other fears or that he wanted to focus on the land issue, discussed above.

   16. When I said to him that I would consider all old and any new information relating to his claims about religion through the optic of complementary protection, he said his concern is the land issue; he said it is important. 

   17. …The other Tribunal member formed the view that [the applicant] had engaged in the conduct of associating with the Catholic church in Australia solely to strengthen his claim to refugee status and, having regard to s.91R(3) of the Act, disregarded that conduct in assessing whether [the applicant] faced a real chance of persecution in China. The only claims [the applicant] made in his previous protection visa application were his claims about religion.

   18. …I am entitled to regard the findings of the tribunal in RRT case [number] as correct; and I do. I do not accept on the evidence before me that [the applicant] was ever involved in an underground church in China.

   19. …On the evidence before me, there is insufficient evidence to suggest, even remotely, that any activities [the applicant] might have undertaken, in Australia, with a church that is unauthorised in China has, or would ever, come to the attention of the authorities or relevant parties in China, let alone that such activity or any other of his activities here would give rise to a real risk of significant harm back in China.

   20. On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that he will suffer significant harm.

9. It was in those circumstances the applicant was found not to be a person in respect of whom Australia owed a protection obligation under s.36(2)(aa). The findings by the Tribunal were clearly open. The applicant had a genuine hearing. The findings cannot be said to lack an evident and intelligible justification. The application is clearly doomed to failure. I am clearly satisfied the application has no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015