AHT15 v Minister for Immigration

[2015] FCCA 1074

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHT15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1074

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – law of general application – 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, s. 36(2)(a), 36(2)(aa), 476

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

Applicant: AHT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 848 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

The applicant appeared in person

Solicitors for the Respondents: Ms Hare
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 848 of 2015

AHT15

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 26 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’s findings that I will not suffer significant harm is a misconstruction’s of the complementary protection legislation and a denial of procedural fairness.

   2. The Tribunal feel into jurisdictional error as it did misconstrued the significant harm interpretation regarding the complementary protection visa legislation pursuant to section 36(2A) aa of the Migration Act 1958.

   3. The Refugee Review Tribunal denied me procedural fairness and feel into jurisdictional error in that it made adverse findings without any evidential support. The Refugee Review Tribunal’s decision is an arbitrary and a capricious exercise of power in breach of the duty to act judicially and that constitutes jurisdictional error of law.

3. The first respondent moved to have the application summarily dismissed.  The first respondent submitted that the first two grounds failed to identify any jurisdictional error in respect of the Tribunal’s decision in respect of complementary protection and that the grounds were, in substance, an impermissible challenge to the findings of fact. 

4. The first respondent submitted that the third ground failed to identify any jurisdictional error and that the adverse findings made by the Tribunal were open to the Tribunal and do not identify any jurisdictional error and that the findings were ones that cannot be said to lack an evident and intelligible justification.  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].

5. The Court informed the applicant that the first respondent was moving to summary judgment and the applicant was asked whether there was anything the applicant wished to say beyond what was identified in the application, and the applicant indicated that there was nothing further the applicant wished to put.

6. I am clearly satisfied that the application does not disclose any arguable jurisdictional error and that the proceedings are doomed to failure.  The applicant is a citizen of Tonga and her claims were assessed against that country.  The applicant has been in Australia since 18 December 2008 and the Tribunal identified her alleged fears of persecution and her evidence. 

7. The applicant attended hearing before the Tribunal on 31 October 2014, and the Tribunal carefully identified her alleged claims and evidence.  The Tribunal noted that the applicant arrived in Australia under a valid subclass 676 short-stay visitor visa which was valid until 29 January 2009 and that the applicant remained in Australia after that date until applying for a protection visa on 6 August 2013.

8. The Tribunal carefully identified the arranged marriage, concerns of the applicant.  However, the Tribunal found:

   56. I found the applicant to be a strong minded and intelligent young woman. I accept that she does not want to marry this man and is determined to marry, if she does so at all, through her own choice. I accept that her father has a traditional view that the applicant’s interests are best served if the family choose a husband for her. I accept that her father, and possibly her mother, consider her to have behaved in an untraditional manner by declining to marry the man they chose.

   57. Although the applicant does not claim to fear that her parents will harm her because of her refusal to marry the man of their choice, I have considered this issue. While I accept that her father wants her to be married and thus, as she put it, protected, it was apparent from her evidence that she remains close to him and is not afraid of him. She also emphasised that she would be able to live with her parents if she returned to Tonga and that it would be her choice if she did not do so. She does not claim that her parents would force her to marry against her will.

   58. For these reasons I am satisfied, and find, that if the applicant returned to Tonga and refused to marry a person of her parents’ choice she would not be subjected to any harm by them.

   …

   60. Further, the applicant knows nothing of his current circumstances or whereabouts, and nothing of his attitude or intentions towards her now. It appears that she has not had any direct contact with him for approximately 11 years.

   61. Taking all these factors into account the chance appears remote that Mr [T] will harm the applicant in any way if she returns to Tonga. I find there is not a real chance that he will.

9. The Tribunal considered the other concerns expressed by the applicant and, relevantly, found:

   66. Given the paucity of information about them and the passage of time, I consider that her fear of being harmed by Mr [T]’s relatives is based on no more than an assumption or speculation. On that basis I find there is no real chance that she will be harmed by them.

   67. I accept that if the applicant returns to Tonga she will choose to live as a single woman, whether in her parents’ household or elsewhere. She does not claim that living as a single woman in itself might give rise to any harm to her and, in the absence of any evidence to the contrary, I find that it will not.

10. The Tribunal then turned to the issue about ownership of certain land and the Tribunal made adverse findings in relation to the applicant in paras.70-73:

    70. That evidence was that apart from two incidents when she was a small child she was not harmed while in Tonga as a result of the dispute, despite remaining there for a further 14 or more years, and that none of her siblings in Tonga are being threatened or harmed because of this dispute. The applicant was unable to suggest any reason why she might be treated any differently to those siblings.

    71. There is nothing in the evidence indicating that anyone wishes to harm her at all because of the dispute, or might harm her in the reasonably foreseeable future because of it.

    72. On that basis I find the chance remote that she will be harmed in any way, whether for a Convention reason or otherwise, as a result of the dispute over ownership of land in Tonga.

    73. Therefore I find that the applicant does not have a well-founded fear of being persecuted, for a Convention reason or otherwise, in Tonga.

11. The Tribunal turned to the issue of complementary protection and, relevantly, found:

    76. As I have concluded there is no real chance she will be harmed in any way in Tonga, I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Tonga, there is a real risk she will suffer significant harm.

12. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia owed protection obligations and that the applicant did not satisfy the criteria under s.36(2)(a) or 36(2)(aa).

13. I am satisfied that the Tribunal afforded the applicant a genuine hearing and there was no substance in the assertion that the Tribunal failed to comply with the legislative regime, and no substance in the assertion of a denial of procedural fairness.  It is clear from the attachment that formed part of the Tribunal’s reasons that it properly identified the complementary protection provisions, relevantly in para.91, and there is no substance in the alleged error in the determination adverse to the applicant in respect of complementary protection.

14. There was clearly evidence that supported the adverse findings made by the Tribunal, and those adverse findings were open.  There is no substance in the proposition that the decision was arbitrary or capricious, or a breach of the duty to act fairly.  The application fails to disclose any arguable jurisdictional error.

15. I am satisfied that the proceedings are clearly doomed to failure.  The findings cannot be said to lack an evident and intelligible justification.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  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:  29 April 2015