AFO15 v Minister for Immigration

[2015] FCCA 986

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 986

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)(a), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: AFO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 758 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr T. Galvin
Minter Ellison

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 758 of 2015

AFO15

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 a decision of the Tribunal made on 16 February 2015 confirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The application identifies the following grounds:

   1. THE TRIBUNAL HAS MADE A JURISDICTION ERROR: THE TRIBUNAL HAS NOT PROVIDED ME A COPY OF CD OF THE HEARING

   2. I WOULD BE PERSECUTED IF I GO BACK TO MY COUNTRY BUT THE TRIBUNAL DID NOT BELIEVE IT

   3. THE DECISION MADE BY THE TRIBUNAL IS NOT FAIR TO ME

3. The application also identifies on the first return date:

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

4. The Court raised with the applicant its concern that the application failed to disclose an arguable jurisdictional error. I take into consideration in respect of 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].

5. The applicant identified that he had just received a copy of the CD hearing and wanted to listen to it.  The Court identified that whether he had been provided with a copy of the CD or not, the Court would require the identification of an arguable jurisdictional error as there are proceedings in which the applicant is seeking a Constitutional writ.  There is no utility in adjourning the matter for the applicant to listen to the CD if the proceedings are doomed to failure as this will only unnecessarily add to the costs of the parties and utilise limited court time. For the reasons given, I am clearly satisfied the proceedings are doomed to failure.  The applicant said the decision was unfair, and why did the Tribunal take so long.  The applicant asserted that the Tribunal had not dealt with the matter properly.  Nothing said by the applicant identified any arguable jurisdictional error.

6. It is clear that ground 1 fails to identify any arguable jurisdictional error.  Ground 2 does not identify any arguable jurisdictional error.  Ground 3 fails to identify any arguable jurisdictional error.  This is not a Court of Appeal.  This Court is not engaged in a review of the merits of the decision by the Tribunal.  It was matter for the Tribunal to make findings of fact on the issues before it in respect of the review. 

7. The Tribunal identified that the applicant was a citizen of China and his claims were assessed on that basis. The applicant applied for a protection visa on 16 July 2013, which the delegate refused on 23 January 2014. The applicant appeared before the Tribunal on 31 July 2014 to give evidence and present arguments, and the hearing was conducted with the assistance of an interpreter. The Tribunal carefully set out the criteria in relation to the relevant law in respect of s.36(2)(a) and in relation to the complementary protection criterion. The Tribunal carefully identified the exit information in relation to departure from China, which was country information.

8. The Tribunal identified that the applicant claimed to fear harm from Chinese officials and police because he lodged objections against what he claims was unfair treatment by officials in relation to the family timber business.  The applicant did not identify a particular Convention ground, and the Tribunal treated the complaint as giving rise to an imputed political opinion against official corruption.  The applicant also claimed minority ethnic groups in China are treated better than Han Chinese, and claims to fear persecution by reason of his race. 

9. The Tribunal noted that there was not provided to the Tribunal any examples of personal experience by the applicant of any discrimination or harm for this reason.  The Tribunal carefully identified the issue as to whether the applicant’s claimed fear of harm is well-founded, or whether there are substantial reasons for believing that there is a real risk of significant harm.  The Tribunal found that it was satisfied the chance of harm befalling the applicant was remote and found that there was no real chance of harm, and that there were no substantial grounds for believing that there is a real risk of harm. 

10. The Tribunal found in para.24 that the applicant’s claimed fear of harm amounting to persecution was not well-founded, and the Tribunal found there were no substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, being China, that there is a real risk that he will suffer significant harm.  Those findings were clearly open on the material before the Tribunal.  The Tribunal clearly put to the applicant that the circumstances of the applicant’s departure from China did not appear to be consistent with a genuine fear of harm:

    13. I put to the applicant that the circumstances of his departure from China did not appear to be consistent with a genuine fear of harm. I noted that his dispute was limited to local officials and police, that his passport was not confiscated, he was able to obtain an exit permit and to leave China through Beijing airport without any difficulty, and his actual departure some 17 days after his Australia visa was granted and more than five weeks after the incident with the police, all suggested, on the basis of independent information available to me, that he was not of adverse interest to the Chinese authorities at the time he left and that his departure appeared to be planned and methodical and not indicative of urgency or fear of harm. The applicant responded that he paid RMB225,000 to an agent to get his visa and the agent applied for his Australian visa and bought his ticket, that the agent did it all and the applicant did not have to do anything. I asked the applicant if he had any documentation which might corroborate this and he responded that he did not, that he transferred RMB160,000 through the bank to the agent and paid the rest in cash, and that the agent would not have any records because it was illegal. He said that the boss of the company where he worked for a long time before working in his wife’s business helped him because that person knows a lot of people and he helped to keep the applicant’s departure secret.

11. The Tribunal explored with the applicant his assertions of discrimination claimed as a result of being Han ethnicity.  When it was put to the applicant that 90 per cent of the population in China is Han, the applicant responded that he meant that he did not get extra points like ethnic minorities to get into university.  Relevantly, the Tribunal found:

    18.    I reject this claim. I am not satisfied that the applicant has a well-founded fear of persecution for this reason. I am also not satisfied that there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm for this reason.

12. In relation to the possible imputed political opinion fear, the applicant found:

    19.    On the basis of the evidence before me, I am not satisfied that the applicant’s claimed fear of serious harm in China is well founded, and I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

13. The Tribunal found that it does not consider any harm to which the applicant might be subjected on his return amounts to either serious harm for a Convention reason or to significant harm within the complementary protection criterion.  The Tribunal found that the applicant does not appear to have a genuine fear in return to China, and that his delay in departing to China after the grant of a visitor visa and his three months delay in lodging his protection visa after arriving in Australia were not consistent with a genuine fear of serious or significant harm.

14. The Tribunal also took into account the timing of the lodging of the protection visa after expiry of the visitor visa, which suggested that the applicant’s motivation in lodging the application was in order to extend his stay in Australia rather than from a genuine fear of return to China.  I am clearly satisfied that the proceedings are doomed to failure.  The findings made by the Tribunal were open on the material before the Tribunal. 

15. The findings cannot be said to make an evident and intelligible justification.  The applicant clearly had a genuine hearing.  The Tribunal conducted the review in accordance with the statutory regime.  There is no utility in granting an adjournment if the proceedings are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospects of success, and the proceedings are summarily dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015