AHZ15 v Minister for Immigration

[2015] FCCA 1041

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHZ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1041

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), 426A, 476

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

Applicant: AHZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 864 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 Respondent: Ms N. Senanayake
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $730.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 864 of 2015

AHZ15

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 the Tribunal made on 4 March 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. I [AHZ15] disagreed with the decision that the Refugee Review Tribunal have made.

   2. The reasons was not grant a Protection visa.

   3. If I returned to China my husband will kill me. I therefore re quest the Court Registrar review my application to grant a protection visa in Australia.

3. The first respondent moved for summary dismissal. The application 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. I take into consideration in respect to the Court’s summary disposal 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. I accept the first respondent’s submission that the application failed to disclose any arguable jurisdictional error.  The application identifies a disagreement with the findings of fact made by the Tribunal.  This is not a Court of Appeal and this Court cannot review the matter on its merits. 

6. The applicant indicated that she did not want to go back, and that death would be waiting for her if she was returned.  The Court identified that it only had jurisdiction to entertain an application in respect of an excess of jurisdiction by the Tribunal, and that the application failed to disclose a jurisdictional error.  Nothing advanced from the applicant identified any arguable jurisdictional error.

7. The applicant was found to be a citizen of China, and her claims were assessed against that country.  The applicant arrived in Australia on 7 September 2013 and applied for a protection visa on 25 November 2013, which the delegate refused on 8 May 2013. 

8. The applicant was sent a letter by the Tribunal on 28 January 2015 inviting the applicant to attend a hearing on 2 March 2015.  The applicant was sent reminders by SMS on 23 February 2015 and 27 February 2015.  The applicant did not appear before the Tribunal on the day.

9. It was open in those circumstances for the Tribunal, pursuant to s.426A of the Act to decide to proceed to make a decision in respect of the review. The Tribunal carefully identified that the claims and evidence of the applicant, given the absence of the applicant, the Tribunal was unable to be satisfied as to the claims advanced by the applicant. The Tribunal relevantly found as follows:

   19. As discussed above, there are a number of issues which the Tribunal would have discussed further with the applicant before it could be satisfied that her claims are credible and there is a real chance of her suffering serious or significant harm from her husband if she was to return to China.  The applicant has not provided sufficient evidence for the Tribunal to be satisfied that there is a real chance of her suffering serious harm from her husband if she returns to China now or in the reasonably foreseeable future.  As the Tribunal finds the applicant has not provided sufficient evidence to support her claims it is not satisfied the applicant has a well-founded fear of persecution for a Convention reason should she return to China. 

   20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). As the Tribunal finds the applicant has not provided sufficient evidence to support her claims it cannot be satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

10. It was in those circumstances the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  The findings of the Tribunal were clearly open on the material before the Tribunal.  The findings cannot be said to lack evident and intelligible justification.  The Tribunal complied with the statutory requirements for notification of the hearing date and it was proportionate and reasonable for the Tribunal to proceed to determine the review given the applicant's failure to attend the hearing or to respond to the notification of the hearing.

11. I am satisfied the proceedings are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 April 2015