Afu15 v Minister for Immigration
[2015] FCCA 1528
•29 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFU15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1528 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that Tribunal’s decision affected by jurisdictional error – allegation that the Tribunal deprived the applicant natural justice – allegation that the Tribunal failed to consider the applicant’s submissions, evidence and/or integers of her claim – merits review – no jurisdictional error on the part of the Tribunal – application dismissed. |
| Legislation: Constitution (Cth), s.75(v) Migration Act 1958 (Cth), ss.65, 424AA, 424A, 425, 474, 476 |
| SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | AFU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 749 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 29 May 2015 |
| Date of Last Submission: | 29 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms A. Carr, DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 749 of 2015
| AFU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore and Revised)
This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 27 February 2015. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) made on 4 December 2014 to refuse to grant the applicant a protection visa.
The jurisdiction of this Court under s.476 of the Migration Act 1958 (“Act”) is the same as that of the High Court under s.75(v) of the Constitution and the Court is restricted by s.474 of the Act to determining whether or not the Tribunal’s decision is affected by jurisdictional error. It is not necessary for present purposes to discuss the scope of what constitutes a jurisdictional error, but examples of jurisdictional error include the denial of procedural fairness, otherwise called natural justice, or a serious mistake of law that affects the exercise of its duty to review the decision of the delegate.
Background
In order to understand the applicant’s claims in this case, it is necessary to give a brief account of the background facts. The applicant arrived in Australia on 19 December 2012 on a student visa that expired on 24 June 2014. When the applicant’s visa expired, she became an unlawful non-citizen and for that reason, on 10 September 2014, was detained and put into immigration detention where she remains.
On 29 September 2014, with the assistance of a migration agent, the applicant lodged an application for a protection visa. The bases for that application were set out in a statement made by the applicant and attached to the application. In effect, her claims were that in order to raise funds for the applicant’s study overseas, her father took out a loan from a private finance company, which, although unknown to him at the time, was an organised crime syndicate. Unfortunately, her father suffered from a stroke and was unable to continue to work, and so fell into default on the loan.
In August 2013, in light of this default, several thugs came to collect repayment. Later, more than ten people came to the convenience store which was owned and operated by the applicant’s father and took all of the goods from the store as security for repayment. Further, the syndicate asked her father to sell the house in which he lived to pay off the liability. The applicant’s father called the police and the thugs did not show when the police were present, but when the police left they returned. The applicant fears that if she were to return to China that the thugs would abduct her and force her into prostitution or remove her organs for money because her father is unable to pay the loan.
On 4 December 2014 a delegate of the Minister made a decision to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision. The Tribunal held a hearing which was attended by the applicant and her migration agent on 16 February 2015. At the hearing the Tribunal raised a number of issues with the applicant concerning the credibility of some of her claims and her evidence. At the end of the hearing it gave the applicant the opportunity to file written submissions in respect of its concerns. On 23 February 2015 the applicant’s agents took that opportunity by filing written submissions, which included a document relating to the disability of the applicant’s father.
The Tribunal made its decision shortly thereafter on 27 February 2015, affirming the decision of the delegate. The Tribunal’s decision essentially turned upon its findings of credit. It said in its statement of reasons that it was not satisfied that the applicant had told the truth in respect of critical aspects of her claim and it gave six reasons for doing so.
The first of those reasons related to the record of the detention interview dated 10 September 2014, in which was recorded the fact that the applicant was asked if she had any immediate family overseas and the applicant gave her mother’s name and indicated her mother’s address as the same address as hers in China. The Tribunal noted that that information was inconsistent with her oral evidence earlier in the hearing that her mother and father divorced in 2009 and that her mother left the family home and had not been in contact with the applicant since late 2009, early 2010.
The second matter stated by the Tribunal concerned the loan which was the basis of her claims in her visa application. In respect of that loan, the Tribunal found that the applicant’s oral evidence was vague in detail and contradictory in content, particularly when asked about whether anything further had happened to her father after August 2013, which, it may be recalled, was the date upon which the thugs were claimed to have first visited her father. The Tribunal noted that while the applicant eventually gave oral evidence that was similar to that contained in her written statement in relation to what had happened to her father, it considered that the omissions in her initial oral evidence and her responses to the concerns raised by the Tribunal reflected poorly on her credit and the reliability of her evidence.
The third matter raised by the Tribunal concerned the failure by the applicant’s father to sell his house in the face of the request by the thugs to do so. The Tribunal noted the applicant’s evidence that her father had been default on the loan since August 2013 and found that in light of that, the claim that her father had resisted a request to sell the home made by such a ruthless gang was implausible.
The fourth matter of concern to the Tribunal related to the use of the amount of money borrowed by the father. In this respect, the Tribunal said that it had raised the concern at the hearing that the applicant had not accounted for where all the money from the loan had been spent, and noted her evidence that her father told her that he could no longer send her money in August 2013, some eight or nine months after she had arrived in Australia. It was not satisfied on the evidence that the entire amount of money said to have been raised had been spent on the applicant for educational expenses by the time the father claimed that he was in default of the loan.
The fifth matter related, again, to the composition of the applicant’s family. In the document sent to the Tribunal with the post-hearing submissions by the migration agent, the Tribunal noted the statement that the applicant’s father was “Level 3 extremity disabled” and made an application, which was recorded in the document, on 20 June 2013. The Tribunal accepted that her father had had a stroke in 2013 but noted that the document made no mention of any debt apart from that concerning the applicant’s father’s illness. Further, the Tribunal noted that the document stated that the applicant’s father had four family members and that the whole family was currently living in the house. The Tribunal found that that was inconsistent with the family composition information provided by the applicant at the hearing. Namely, that the applicant’s mother had left and had not been in contact since 2009/ 2010.
The sixth matter of concern to the Tribunal was that the applicant had not made her protection visa application until 29 September 2014, after she had been taken into detention. The applicant’s explanation for this was that she had not been told by her father about the loan and the problems until that time. However, the Tribunal rejected that explanation on the basis of its other concerns and was not satisfied that the applicant’s father informed her about the loan and the problems only after she was detained.
On the basis of those findings, the Tribunal did not accept that the applicant’s father borrowed the money in 2012 to fund the applicant’s education in Australia or that he was in default of that loan and that a criminal gang had been seeking repayment and had assaulted him or taken money from his home or stolen goods from the convenience store. It did not accept that the applicant’s father was requested to sell his house to repay the loan or that his brother now lives with someone else, or that a person continues to harass the applicant’s father for repayment.
It did not accept that the applicant’s father has any outstanding loan to a criminal organisation or that there was a real chance that the applicant would be forced into prostitution or have her organs harvested or be subjected to significant physical harm, or harmed in any way, if she were returned to China. On the basis of those findings of fact, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa, and so affirmed the decision of the delegate.
Consideration
Grounds 1, 3, 5, 6 and 7
In her application to the Court, the applicant raises eight grounds and also, in the orders sought, appears to raise a ninth ground. Five of the grounds can be dealt with together:
1.I have more evidence and enough information for a fair complementary protection review.
…
3.Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations, being physically harmed, mentally tortured, and emotionally unstable for the rest of my life.
…
5. I have been a debate amongst the gangsters that I may be coming back to China so they can physically harm me.
6. Lots of threats have been sent as to my significant hare to my vulnerability which are never to be settled for the rest of my life.
7. The situation had I had to go back home would be very critical and life threatening to myself, also I will be tortured for the rest of my life.
…
Each of those grounds raise questions of fact which go to whether or not the applicant is owed protection obligations by Australia.
Whether or not the applicant is owed protection obligations by Australia is a criterion for the grant of a protection visa. Pursuant to s.65 of the Act, the Minister or, on review, the Tribunal must be satisfied that the applicant has met that criterion. In that way, whether or not the criterion is satisfied is part of the role of the Tribunal in reviewing the delegate’s decision. It is not, however, part of the role of the Court on judicial review. As I have explained above, that role is limited to determining whether or not there is jurisdictional error in the Tribunal’s decision.
However jurisdictional error might be described, it cannot be that jurisdictional error for the Court to determine whether or not the applicant is a refugee or otherwise satisfies the criteria for the grant of a protection visa. This is commonly referred to as raising only the merits of the decision, and since the merits of the decision are beyond the jurisdiction of this Court, none of those grounds can support any of the orders sought by the applicant. For that reason they are rejected.
Ground 2
Ground 2 in the application is that the Tribunal deprived the applicant of natural justice. I asked the applicant to explain what she meant by this ground and she said that she was denied natural justice because the Tribunal did not believe her, that the Tribunal asked her questions and that she answered honestly. I understand that what the applicant intends to say is that it was unfair for the Tribunal not to believe her when she was being honest. That, however, is not what is meant by a denial of natural justice.
It may in fact be unfair because the applicant was in fact honest, but that is not a matter that the Court can determine. Natural justice, or procedural fairness as it is more often called, is a question of whether the Tribunal has afforded the applicant an opportunity to give evidence and to present submissions. In the case of the Tribunal, that opportunity is encompassed in s.425 of the Act, which requires the Tribunal to invite the applicant to attend a hearing, to give evidence, and to make submissions about the issues that arise on the review.
In this case, the Tribunal did invite the applicant to attend a hearing, and it is clear not only from the Tribunal’s statement of reasons but also from what the applicant said today that the Tribunal did ask questions relevant to the issues of review and gave the applicant the opportunity to give evidence by answering those questions. Further, it gave the applicant and her migration agent the opportunity to make further written submissions about the issues that were raised. In my view, there was no breach of s.425.
Another aspect of the obligation to afford procedural fairness is to give the applicant the opportunity to address adverse information which might be relied upon by the Tribunal. This obligation is found in respect of the Tribunal in s.424A of the Act:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
The obligation under that provision might be satisfied either in writing by the Tribunal or in accordance with the provision of s.424AA by putting clear particulars of the information to the applicant at the hearing.
In this case, the Tribunal purported to comply with s.424AA of the Act in respect of information contained in the detention detainee interview dated 10 September 2014, and to which I have referred above. It is not clear from the material whether or not the Tribunal actually complied with s.424AA, but I accept the submission from the Minister that it does not matter because there was, in any event, no obligation under s.424A.
That is because the information referred to by the Tribunal was that at the interview the applicant had given her mother’s name and indicated her mother’s address in China, and it explained this was inconsistent with her later evidence. However, it is clear that on its own the information in the interview record was not information that the Tribunal considered would be the reason or part of the reason for the decision. It was only a comparison of that information to later information and an inconsistency between the two that caused the Tribunal any concern.
As explained by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, at [17]-[18], such information does not fall within s.424A, and for that reason there was no obligation on the Tribunal to comply with the procedure in that section or in s.424AA. For those reasons, I conclude there was no denial of natural justice by the Tribunal, either considered within its common law notions or, more importantly, within the scope of ss.425 and 424A.
Ground 4
The fourth ground in the application is that “the [Tribunal] made an error of law [for] not considering my submissions.”
When asked to clarify this ground at the hearing, the applicant said that the Tribunal did not believe that her father is disabled. That is not, in fact, correct. As I have said above, at [40] of its reasons the Tribunal stated that it did accept that her father had a stroke in June 2013. What it did not accept were the other claims relating to the loan, the failure to repay that loan, and the consequences of such a failure. For that reason, I would reject the ground. In any event, it is clear that the Tribunal did consider the applicant’s submission.
The Tribunal expressly referred to the written submission at [25], [35] and [38] to [41] of its statement of reasons. It considered the matters raised in those submissions and applied its mind to whether or not it accepted them. For those additional reasons ground 4 is rejected.
Ground 8
Ground 8 is that the Tribunal made an error of law by not considering evidence which was significant and critical to the decision under review. The applicant explained that ground at the hearing as being evidence relating to the fact that the father was disabled and not able to work. For the reasons I have given in respect of ground 4, however, the premise of that ground cannot be accepted.
Dealing with the matter more broadly, it is clear that the Tribunal did consider the evidence and all of the claims made by the applicant. It set out all of the original claims made by the applicant in its statement of reasons, as well as summarising the evidence and claims made by the applicant at the hearing. On the material before me there is nothing to suggest that that summary is inaccurate. Further, having set out that material, the Tribunal then made findings which dealt conclusively with all of the claims that arose and made a determination that the essential elements of the applicant’s claims to be owed protection were not in fact true. For those reasons I would reject ground 8.
“Ground 9”
The first paragraph under the heading “Final Orders Sought by the Applicant” in the application states that:
Some integers of my claims were not properly taken into account by the RRT member.
I have dealt with that ground in respect of the matters raised under ground 8, and so to the extent that it can be seen to be a separate, ninth ground, I reject it for the same reasons.
Conclusion
I therefore reject all of the grounds in the application. I have had regard to all of the material in the Court Book and have closely read the Tribunal’s statement of reasons. I can see no jurisdictional error apparent in them. For those reasons, the application must be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 15 June 2015
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