AJM15 v Minister for Immigration

[2015] FCCA 1193

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJM15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1193

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.424AA, 476

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

Applicant: AJM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 935 of 2015

Judgment of: Judge Street

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Sydney

Delivered on: 7 May 2015

REPRESENTATION

There was no appearance by the applicant

Solicitors for the Respondent: Ms A. Wong
DLA Piper

ORDERS

1. The application for an extension of time is dismissed.

2. The application be summarily dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $2000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 935 of 2015

AJM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 for which the applicant seeks a Constitutional writ in respect of a decision the Tribunal’s made on 6 January 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.  The application identifies the following ground:

   I did not have an effective RRT hearing due to language barrier. I appealed to the RRT on 16 May 2014 and I appeared before the Tribunal on 13 November and 28 November 2014. I had difficulty understanding the interpreter and therefore I wasn't able to communicate with the Tribunal member.

2. The application identifies under the 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.

3. The matter was called outside of the Court, having been listed for hearing at 9.30 am this morning and it is now 10.15 am and there is no appearance on behalf of the applicant.  This is a matter in which it is apparent that the application fails to disclose any arguable jurisdictional error and in these circumstances it is appropriate that the matter be summarily dismissed.  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].

4. The applicant is found to be a citizen of China and his claims were assessed against that country.  The applicant first travelled to Australia in 2007 as the holder of a Student Guardian visa and became an unlawful non-citizen on expiry of that visa.  The applicant was granted a Bridging visa which was valid until September 2008 and the applicant again remained in Australia as an unlawful non-citizen.  The applicant made an application for a Protection visa on 29 November 2013 and the delegate refused to grant the visa on 16 April 2014 and the applicant sought review on 16 May 2014. 

5. The applicant appeared before the Tribunal at a hearing on 13 November 2014 and 28 November 2014 to give evidence and present arguments and she was assisted by an interpreter.  Following the adjourned hearing which occurred on 28 November 2014, where the applicant’s migration agent informed the Tribunal the applicant wished to proceed for the decision on the papers, the Tribunal did not have the opportunity to discuss its concerns with the applicant.  It wrote to the applicant on 9 December 2014 identifying the matters that it wished to discuss with the applicant. 

6. On 2 January 2015 the applicant’s representative confirmed in writing the applicant’s request for a decision on the papers.  The Tribunal carefully identified the relevant law and relevantly found that the applicant had not been a truthful witness and made adverse findings:

   15. The Tribunal has considered the applicant’s evidence. The Tribunal has found the applicant not to have been a truthful witness. The Tribunal is most concerned about the absence of any documentary evidence to support the applicant’s claims. While the Tribunal acknowledges that documents may not always be available in such cases, the Tribunal is of the view that in the circumstances of this particular case, the applicant should have been able to present documentary evidence in support of her claims, if these were true. The applicant’s claims are such that events to which she refers would have been well documented. There would be evidence of her operating a business and documentary evidence concerning the closure of the business. There would be evidence of the investigation and of finding the applicant’s guilt. There would be documentary evidence requiring her to pay the fine and there would be evidence of the loan being taken with the private lenders. The fact that the applicant presented none of such documents suggests the Tribunal that the applicant had been untruthful in her description of events and that such events did not take place.

   16. The Tribunal also considers the very basis of the applicant’s claims to be implausible. The applicant claims in her protection visa application that the boy drowned near the farm, not at the farm. There appears to be no reason for the applicant or her family to be blamed for the boy’s death. The applicant claims she had to pay RMB 200,000 to the boy’s parents and could not repay the debts associated with the business, and that everything had been taken from them, yet she was able to borrow a substantial sum of money to arrange a student visa for her child and the student guardian visa for herself and for the two of them to travel to Australia. The applicant claims that she ran the business with her husband, that it was a family business, yet she does not suggest that her husband had specifically been harmed or mistreated since 2007, other than her vague references to general harassment, poverty and taking of the goods. The applicant confirmed in her oral evidence to the Tribunal that both her husband and her sons continue to live in the home village. The husband continues to remain in China, as does her second son. Similarly, the applicant claims that her son returned to China from Australia and was beaten, but she does not claim that either her husband or her second son had been beaten in the past. It is unclear why only the applicant herself would be harmed upon return to China. It is also not apparent why, if the applicant decided she faced problems due to lack of funds, she made the decision to travel to Australia. It would have been neither the cheapest, nor the quickest option.

   17. The Tribunal has formed the view that other aspects of the applicant’s claims had not been adequately addressed. For example, the applicant offered no details about her dealings with the police and the local government, although she claims she argued with these authorities. Again, the applicant presented no documentary evidence of her dealings with such authorities. The applicant has not explained whether she sought to challenge the adverse findings through the courts or any government agency and, if not, why she did not pursue that option. The applicant offered very little detail about her dealings with the boy’s family. In the Tribunal’s view, the very limited information contained in the application, and the applicant’s failure to provide details in relation to these central aspects of her claims, suggest the applicant has not been truthful in these claims.

   …

   21. Having regards to these concerns, the Tribunal has formed the view that the applicant has not been truthful in her evidence. The Tribunal has formed the view that the applicant’s claims had been fabricated to enable her to extend her stay in Australia. The Tribunal does not accept the applicant’s claims. The Tribunal does not accept that a boy drowned near the applicant’s farm. The Tribunal does not accept that there was an investigation by the local authorities or the police and that the applicant or the farm was blamed for the death or that they were framed for the death of the boy. The Tribunal does not accept that the applicant was required to pay compensation of RMB 200,000 to the boy’s parents or that the farm was shut down. The Tribunal does not accept that the applicant or her family were unable to make the repayment, that they were harassed by the boy’s family or the lenders. The Tribunal does not accept that the applicant had any dealing with the private lenders and that as a result of her inability to repay the loan, she and her family, including her son and her husband, had been harassed. The Tribunal does not accept that the family is destitute. The Tribunal does not accept that valuables had been taken from the applicant’s home. The Tribunal does not accept the entirety of the applicant’s claims.

   22. The Tribunal finds that there is no real chance that the applicant will be persecuted for any Convention reason, or a combination of reasons, if she were to return to China, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   23. The Tribunal has also considered whether the applicant is entitled to complementary protection. For the reasons given above the Tribunal has rejected the entirety of the applicant’s claims. The Tribunal finds there are no 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 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).

7. In those circumstances, the Tribunal found the applicant was a not person in respect of whom Australia had protection obligations as the applicant did not satisfy the criteria under s.36(2)(a) and s.36(2)(aa).  I am satisfied that the applicant had a genuine hearing.  I am satisfied the Tribunal complied with the statutory obligations.  I am satisfied that the adverse findings by the Tribunal were open.  I am satisfied the findings cannot be said to lack an evident and intelligible justification. 

8. I am clearly satisfied the application has no reasonable prospect of success.  The ground identified in the application fails to identify any arguable jurisdictional error and is otherwise an impermissible challenge to the findings of fact made by the Tribunal.  The application is summarily dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2015