AGL15 v Minister for Immigration

[2015] FCCA 1063

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1063

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), 36(2)(aa), 476

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

First Applicant: AGL15

Second Applicant: AGM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 791 of 2015

Judgment of: Judge Street

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Sydney

Delivered on: 23 April 2015

REPRESENTATION

Solicitor for the Applicants: Ms L. King

Solicitors for the Respondents: Ms B. Rayment
Mills Oakley Lawyers

ORDERS

1. The proceedings are summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 791 of 2015

AGL15

First Applicant

AGM15

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 this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 4 March 2015, affirming a decision of the delegate not to grant the applicants a Protection (class XA visa).  The first respondent moved for summary dismissal of the application on the grounds that the application failed to disclose any arguable jurisdictional error.

2. The application identifies the following grounds:

   1. The Refugee Review Tribunal and the Minister for Immigration and Border Protection did not look at the Applicants’ evidences correctly according to law in making its decision. Its decision is biased and unreasonable.

3. The first respondent identified that there was no substance in relation to the alleged assertion of bias on the basis of an adverse decision.  I agree with the submissions of the first respondent that there is no substance in the ground in the application and that, to the extent that it identifies an assertion of unreasonableness, that it is an impermissible challenge to the merits of the decision.  It cannot be said that a reasonable person might believe that the Tribunal failed to bring an independent and impartial mind to the determination of the matter on its merits because it made adverse findings of credit against the applicant.

4. The solicitor for the respondent indicated that the matter had been received by the solicitor the day before this First Court date and that the solicitor was desirous of an adjournment so as to get the benefit of obtaining a transcript and input from counsel, to file an amended application and to put on further affidavit evidence.  The adjournment was opposed by the first respondent.  The first respondent properly identified that the application filed was doomed to failure.  There is no utility in granting an adjournment in respect of proceedings that are doomed to failure, as to do so only unnecessarily increases the cost to the parties and utilises limited Court time.

5. The solicitor for the applicants sought to identify that the decision of the Tribunal turned on the adverse findings of credit of the applicant.  The solicitor focused on the lengthy history of travel by the first applicant to and from Australia and the incident that occurred in April 2013.  It was for the Tribunal to determine the issues of credit and nothing was said by the solicitor for the applicant that identified any arguable jurisdictional error.  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. 

6. The solicitor for the applicants indicated that she does have the decision of the Tribunal.  The Court invited the solicitor for the applicants to identify an arguable jurisdictional error beyond that identified in the application, and the solicitor was unable to identify any jurisdictional error.  I am clearly satisfied that there is no utility in granting an adjournment in these proceedings, as they are doomed to failure.  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; [2010] HCA 28, at [24]-[25] and [59]-[60].

7. The Tribunal identified the history of the first applicant’s travel to and from Australia in para.1 of its reasons and that the applicants applied for a protection visa on 10 July 2013 which the delegate refused on 23 February 2014.The applicants applied for review on 8 March 2014 and appeared before the Tribunal on 2 September to give evidence and present arguments.  A hearing was conducted with the assistance of an interpreter as well as the applicants being represented by a registered migration agent.  The Tribunal identified the key issue in the case was the applicant’s credibility and whether there was a real chance that, if the applicants were returned to China, they will be persecuted for one or more of the five convention reasons and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed to China, that there is a real risk that they will suffer significant harm.

8. The applicants were found to be citizens of China and their claims were assessed on that basis.  The Tribunal carefully set out the claims and evidence of the applicants, including the assertion of the event that allegedly occurred in April of 2013 involving the first applicant’s brick factory.  The Tribunal expressed concern in relation to the credibility of the applicant’s claims and evidence and relevantly found:

   22. … In the Tribunal’s view, the applicant has not been truthful about these claims but introduced them in an attempt to strengthen his case for protection.

   23. …Similarly, as suggested to the applicant at hearing, the Tribunal does not find it credible that the local authorities would not charge him for destroying government property when he smashed up the Village Committee office in 2007 (paragraph 14 refers) but instead took revenge by demolishing the house he was building two years later.

   24. … The Tribunal is not persuaded by the applicant’s various responses when this inconsistency was put to him in the context of s.424AA of the Act, that there was no police station in his village, ‘only a police office’; that the county police station was 18 kilometres away; and that women don’t know about police.

   25. …The Tribunal does not find it realistic that the bandits would announce themselves in such a melodramatic way, especially if they were trying to catch the applicant. As discussed at hearing, the Tribunal also finds it implausible that, while the gangsters smashed his home and searched around it, they did not look for him at his neighbour’s house one hundred metres away because ‘they don’t have anything to do with it’.

   26. … While the Tribunal accepts this, the fact that both the applicant and his daughter gave the same incorrect date for these events suggests that an element of collusion was involved in preparation of evidence.

   29. In light of the above, the Tribunal is not satisfied that the applicant has been truthful about his professional qualifications or employment in China and does not accept that the applicant ever ran a construction business or a brick factory in China. The Tribunal has had regard to documents on the Department’s file, including a business license for the brick factory, as well as the certificate relating to his ‘construction qualification’ shown to the Tribunal at hearing.  However, as explained to the applicant, in light of country information regarding the widespread availability of false documents of all kinds in China, including business licenses, diplomas and property certificates, the Tribunal cannot attach weight to the documents provided. Nor does Tribunal give weight to photographs on the Department’s file purporting to show the brick factory before and after it was demolished by the local authorities; because, in addition to concerns raised about them in the delegate’s decision record, it is not apparent from the photographs where and when they were taken or what they signify.

   30. Considered together, the reasons discussed above lead the Tribunal to find that the applicant has not been truthful about his experiences in China and the reasons he fears returning to that country. The Tribunal is not satisfied that the applicant was involved in the construction business or had a brick factory in China; nor that the brick factory was demolished by the local authorities in 2013 because he praised capitalism or criticised the Chinese political system to other villagers after returning from abroad in 2011 or for any other reason. The Tribunal does not accept that the applicant attacked the Party Secretary or smashed his office over this in April 2013; or that bandits came to search for him, threatened to kill him or smashed his house as a result. Further, the Tribunal is not satisfied that the Village Committee demolishing the house the applicant was building in 2009 in revenge for him smashing furniture in their office in 2007.

9. It was in those circumstances the Tribunal made adverse findings as follows:

   31. It follows that the Tribunal does not accept that if the applicant returns to China he and his family will be threatened or harmed by the Chinese authorities, including the Party Secretary of the village committee, the village police, county government or their bandit accomplices, because of his alleged praise of capitalism or criticism of the Chinese political system while he was in China, as claimed; nor because he sent his children abroad to study; or took his family abroad. As discussed with the applicant at hearing, in light of his declared interest in migration to Australia, it is the Tribunal’s view that the applicant fabricated his claims in order to achieve a migration outcome for himself and his family.

   32. On the basis of the evidence before it, the Tribunal is satisfied that the applicant does not now, or in the reasonably foreseeable future, have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if they return to China.

   33. Having regard to its findings of fact above that the Tribunal does not accept that the claimed events occurred and on the basis that the applicant lacks credibility, the Tribunal does not accept that there are 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 as defined in subsection 36(2A) of the Act.

10. The Tribunal found that the applicants were not persons who in respect Australia had protection obligations and that the applicants did not satisfy their criteria under s.36(2)(a) or 36(2)(aa). I am satisfied that the findings made by the Tribunal were open and cannot be said to lack an evident and intelligible justification. I am satisfied that the applicants had a genuine hearing and that the Tribunal complied with its statutory obligations. As the application is doomed to failure, there is no utility in granting an adjournment. I am clearly satisfied the proceedings had 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:  29 April 2015