AGA15 v Minister for Immigration

[2015] FCCA 1002

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGA15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1002

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), 36(2)(aa), 91R, 476

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

First Applicant: AGA15

Second Applicant: AGB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 772 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

Solicitors for the Applicants: Mr O. Wellington
Wellington Legal

Solicitors for the First Respondent:

Mr K. Eskerie

Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

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

The Court notes that these orders have been corrected pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 772 of 2015

AGA15

First Applicant

AGB15

Second 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 25 February 2015 affirming 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 erred in failing to have regard to an integer part of the applicants claim as to whether the religion related "name calling" suffered by the applicant amounts to psychological harm that is 'serious harm" within the meaning of Section 91R Migration Act 1958 (Cth), and serious enough to constitute admitted religious persecution for the purposes of the Refugee

   Convention's definition of a Refugee.

   2. The Tribunal erred in failing to have regard to an integer part of the applicants claim as to whether the religion related 'name calling and adverse comments' suffered by the applicants is potentially a type and level of harm that meets the serious harm test of 'significant harassment of the person’ [the applicants] within the meaning of Section 91R Migration Act 1958 (Cth).

   3. The Tribunal erred in concluding that whole name calling and comments suffered by the applicants are upsetting they are not of a level of harm as could be considered as serious harm as meant by the Convention or section 91R(2) of the Migration Act 1958 (Cth).

   4. The Tribunal erred in concluding that discrimination, harassment, upsetting name calling suffered by the applicants as Muslins is not 'serious harm' within Convention reasons or under section 91R(2) of the Migration Act 1958 (Cth).

   5. The Tribunal erred in failing to have regard to discrimination, harassment, upsetting name-calling suffered by the applicants to be the type and level of persecution and selective harassment that can be seen as part of a course of systematic conduct directed for a Convention reason against the applicant within the meaning of Section 91R Migration Act 1958 (Cth).

   6. The Tribunal erred in failing to have regard to the seriousness of discrimination suffered by the applicant, which involves systematic discriminatory conduct within the meaning of Section 91R Migration Act 1958 (Cth), and the applicants' claim of well-founded fear for a Refugee Convention reason.

   7. The decision made by the Respondent and its delegate on the 25 February 2015 failed to give the applicants natural justice by ignoring relevant material provided by the applicants in writing and orally to the Respondents and its delegate.

3. The application also identifies a 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.

4. The Response by the first respondent noted that the application does not establish any jurisdictional error and the first respondent indicated that there was no reason why the matter should not be dealt with summarily. The Court then raised with Mr Wellington, solicitor, the tentative concern that the application failed to disclose any arguable jurisdictional error.  Mr Wellington identified that he was in the process of preparing submissions and wished to have the matter stood over.  The Court indicated that it was happy to stand the matter down in the list till 2.15pm but was not willing to adjourn the matter on the basis that it failed to disclose any arguable jurisdictional error and unless persuaded there was an arguable jurisdictional error the Court would not adjourn the matter. The Court indicated that adjourning a matter that is doomed to failed will only unnecessarily add to the costs of the parties and utilise limited Court time.

5. The matter was re-mentioned before the Court before 11am. Mr Wellington was taken to the proposition that the Tribunal had clearly addressed the integer of name calling in its adverse findings and that the grounds appeared to identify impermissible challenges to findings of fact.  Mr Wellington did not seek to develop any further argument.

6. In relation to ground 1 it is clear that the Tribunal carefully addressed the issue raised by the applicant in respect of name calling and clearly addressed the statutory criteria in respect of both s.91R and a separate consideration in relation complementary protection. Ground 1 is in substance an impermissible challenge to a finding of fact and fails to disclose an arguable jurisdictional error.

7. To the extent it is suggested in ground 2 that there was an integer in respect of name calling that was not addressed it is clear from the Tribunal’s decision particularly at paras.41, 42 and 43 taken together with paras.13 and 14 that this integer was properly identified and properly addressed by the Tribunal.  Accordingly, there is no substance in ground 2 and it fails to identify an arguable jurisdictional error.

8. Ground 3 is also an impermissible challenge to a finding of fact and does not disclose any arguable jurisdictional error. 

9. In relation to ground 4 it is clear from para.41 the Tribunal carefully addressed the issue of serious harm. Ground 4 is in substance an impermissible challenge to a finding of fact and fails to disclose an arguable jurisdictional error.

10. Ground 5 is also a matter which in substance is an impermissible challenge to a finding of fact by the Tribunal and does not disclose any arguable jurisdictional error. 

11. Ground 6 is also an impermissible challenge to the adverse findings of fact made by the Tribunal and does not disclose any arguable jurisdictional error.

12. In relation to ground 7 it is clear from the reasons of the Tribunal that the Tribunal carefully addressed the material before it and it can not be said that the applicant’s material was ignored.  There is no substance in the contention that the applicants were denied natural justice, as raised in ground 7. Ground 7 again fails to identify any arguable jurisdictional error.

13. In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118. The applicants were citizens of South Africa, and applied for protection visas on 6 December 2012 which were refused on 6 September 2013. The applicant appeared before the Tribunal on 17 April 2014 to give evidence and present arguments.

14. The Tribunal carefully identified the claims and evidence of the applicants and, relevantly, thought there was a serious issue of credibility in relation to the applicants’ claims and whether the criteria under s.36(2)(a) or s.36(2)(aa) were met. The Tribunal noted the age of the second applicant and that the second applicant did not have his own claims for protection or was a member of the family unit.

15. The Tribunal identified the travel that the applicant had engaged in to other countries, including Senegal and South Korea and the applicant’s residence in London, where she worked for almost six years.  The Tribunal identified the applicant’s claims in para.13, including the relevant issue of name calling and the Tribunal noted that the delegate found the applicant did not have a well-founded fear of persecution for religious reasons and the risk of harm from any xenophobic attacks were remote.

16. The Tribunal noted the applicant appeared at the hearing on 17 April 2014 and repeated the claims advanced, including the alleged fear of xenophobic attacks.  The Tribunal carefully identified the applicant’s evidence and found that while some of the claims were consistent, there was cause for concern as to the veracity of the applicant in respect of some of her claims.  The Tribunal carefully set out in para.38 six dot point issues relating to the applicant’s credibility where, relevantly, the Tribunal found that the applicant fabricated one of the claims.

17. It was in these circumstances the Tribunal made the finding in para.39 that the applicant had exaggerated aspects of her claim so as to enhance claims for a protection visa.  The Tribunal found that the applicant was not a credible witness.  In relation to the issue of name calling the Tribunal made an adverse finding in para.41:

    41. Conversion to Islam by black South Africans is not uncommon particularly in the postapartheid era. The Christian Science Monitor in an article from 2002 In South Africa, many blacks convert to Islam, by Nicole Itano, January 10, 2002, reports that “Islam is growing in South African communities, offering a haven from social vices, an ethic of charity for the needy, and social reform”. Whilst I accept that the applicant has received some adverse comment, as noted above, I do not accept Muslim conversion is unusual or frowned upon by the various communities in South Africa. South Africans can choose their own religion and this is enshrined in their Constitution. I do not accept that the applicant has faced any discrimination of any significance on account of this. Whilst the name calling and comments are upsetting they are not of a level of harm or type of harm as could be considered as serious harm as meant by the Convention or section 91R(2) of the Act.

18. The Tribunal continued to make adverse findings as follows:

    42. The applicant claims xenophobia in South Africa. I accept there is and that in 2008 there were widespread attacks against foreigners, particularly from the Somali community. The report provided by the applicant from 2013 details the issue has lessened, and the government has taken some action to address the concerns, though it is still an underlying problem. An IOM report from 2013: The effects of xenophobia on the integration of migrants in South Africa: An NGO perspective, by Stefanie Jost, Karoline Popp, Melanie Schuster, and Astrid Ziebarth, details the effects of xenophobia and what action is being undertaken to address the issue. I accept that there is xenophobia against foreigners in South Africa and this would impact on the applicant as she has married a person from Senegal and has a child with him. Whilst I appreciate that the name calling and comments are upsetting I do not accept that the harm is anything more than this.

    43. The applicant was asked to detail the discrimination her son faced in South Africa. She said there was name calling, particularly her son being called a foreigner. I accept he has a Muslim name and his father is a Senegalese. I accept this is a xenophobic response to his background. Whilst I appreciate this is upsetting it is not of a level of harm or of a type of harm as could be considered as persecution as meant by the Convention or section 91R(2) of the Act.

    44. I accept that the applicant was assaulted by a person on 27 October 2011. I do not accept it was by 4 men. I accept she presented at hospital and also reported the matter to the police. I accept they investigated the matter and later may have lost the complaint, and she then made another one. I do not accept however this had anything to do with her husband or men seeking him. I also do not accept that she was then concerned about the matter to the extent that she went into hiding, and was moving from city to city, as claimed in her original application. I find she continued living at her usual residence and continued her usual work. Whilst this incident was unfortunate, I do not accept there was any ongoing concern by the applicant regarding this matter.

    …

    46. Overall, I find that the accepted concerns of the applicants, whether considered singularly or cumulatively, are minor and are not of a type of harm or a level of harm as could be considered as persecution as meant by the Convention or section 91R(2) of the Act. I find the applicant has exaggerated her concerns and some of her claims, as detailed above, so as to enhance her claims and those of her son for a protection visa.

    47. Overall, I find that the applicants’ fear of harm on return to South Africa in the reasonably foreseeable future is not well founded. I find that there is not a real chance they will suffer serious harm amounting to persecution for reasons of a Convention ground.

19. It is in those circumstances the Tribunal found that the applicant did not meet the criterion under s.36(2)(a) and the Tribunal turned to consider the issue under s.36(2)(aa) and made adverse findings as follows:

    51. The applicant has made no specific claim and no submissions on this criterion. As detailed above and for the same reasons I do not accept that accepted concerns of the applicants are of the type of harm or of a significance as could be significant harm as meant by section 36 (2A).

    52. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    53. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

20. It is clear the applicants had a genuine hearing.  There is no utility in granting an adjournment as the proceedings are doomed to failure and an adjournment would only add unnecessarily to the costs of the parties and utilise limited Court time.  The proceedings are clearly doomed to failure.  The adverse findings by the Tribunal were clearly open.  I am clearly satisfied the proceeding had no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 April 2015