AOD15 v Minister for Immigration

[2016] FCCA 2797

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOD15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2797

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visas – whether the Tribunal failed to apply the relevant law – whether the Tribunal failed to consider the applicants’ claims and evidence – no jurisdictional error identified – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Federal Circuit Court Rules, rr.13.03C(1)(c), 16.05(2)(a).

Cases cited:

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

First Applicant: AOD15

Second Applicant: AOE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1846 of 2016

Judgment of: Judge Street

Hearing date: 31 October 2016

Date of Last Submission: 31 October 2016

Delivered at: Sydney

Delivered on: 31 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms  C Saunders

DLA Piper

ORDERS

1. The application in a case is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the amount of $1,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1846 of 2016

AOD15

First Applicant

AOE15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 June 2016 affirming the decision of the delegate not to grant the applicants’ Protection (Class XA) visas.

2. The applicants are husband and wife who arrived in Australia on 17 October 2012 after the main applicant was granted a class TR subclass 676 Visitor visa on 13 September 2012, and the second applicant was included as the first applicant’s dependent.

3. On 10 December 2012, an application for a protection visa was lodged on behalf of the first and second applicants. The second applicant’s application relies on being a member of the same family unit as the first applicant. The first applicant’s fears of persecution are based upon the first applicant being a Jehovah’s Witness, as well as the first applicant’s family’s involvement in Christianity, and that the first applicant would be perceived as a member of the local church or family church gatherings or the Jehovah’s Witnesses church in China. 

The Delegate’s Decision

Protection Obligations for Refugee Convention Assessment

1. The delegate did not accept the applicants’ credibility and was of the opinion that the applicants’ motivation for remaining in Australia was more likely for economic reasons and lifestyle than any genuine fear of religious persecution.

2. The delegate rejected the first applicants’ claims on credibility grounds in relation to her parents-in-law. The delegate found the first applicant’s claims in the main, merely uncorroborated assertions and her responses at the interview of little credit in establishing her claims. 

3. The delegate was concerned as to the applicant’s knowledge of Christianity having been obtained for the purpose of her Protection visa interview. The delegate was not satisfied the first applicant was of any adverse interest to the authorities for a Convention-related reason at the time of her departure from China. The delegate was not satisfied there was any evidence to indicate that the first applicant would be of any interest to the authorities for a Convention-related reason in the reasonably foreseeable future if she were to return. 

4. The delegate was not satisfied the first applicant has a real chance of being persecuted for a Refugees Convention reason. The delegate found the first applicant’s fear of persecution as defined under the Refugees Convention was not well-founded.

Complementary Protection Criterion Assessment

1. The delegate found the first applicant’s claims in part to be implausible and did not accept the first applicant as a witness of credibility in relation to her claims.

2. The delegate was not satisfied the first applicant has a real chance of subject to significant harm should she return to China. The delegate found that the first applicant was not a person in respect of whom Australia had protection obligations. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there is a real risk the applicant would suffer significant harm.

The Tribunal’s Decision

1. Following the delegate’s decision on 8 August 2013 the applicant lodged an application for review which was heard before a differently constituted Tribunal. On 26 March 2015, the Tribunal made a decision which was set aside by orders of this Court.

2. The applicants were notified by a letter dated 18 August 2015 by a differently constituted the Tribunal of the reconsideration of the application for review. 

Hearing on 16 February 2016

1. On 14 December 2015, the applicants were informed that the Tribunal was unable to make a favourable decision on the information provided and were invited to attend a hearing on 16 February 2016.The applicants appeared on that date to give evidence and present arguments and were assisted by an interpreter. The Tribunal identified the relevant law and set out the applicants’ claims in evidence. 

2. The Tribunal found that the first applicant was not a credible witness.  The Tribunal did not accept that the first applicant or any members of her family were Jehovah’s Witnesses in China. The Tribunal did not accept that the first applicant or any members of her family had any association with the local church, family church or any other organisation that is considered to be an evil cult in China.

3. The Tribunal did not accept that the first applicant or any members of her family attended gatherings in China. The Tribunal rejected the entirety of the first applicant’s material claims in relation to China as the Tribunal was of the view that the claims had been fabricated. 

4. The Tribunal accepted that the first applicant had attended Jehovah’s Witnesses Church in Australia but found that her attendance was not otherwise than for the purpose of strengthening of the applicant’s claims to be a refugee. Therefore it was required under s.91R(3) of the Act to disregard the conduct in the assessment of whether the first applicant had a well-founded fear of persecution.

5. The Tribunal was not satisfied the first applicant was a genuine Jehovah’s Witness. The Tribunal was not satisfied that the first applicant had any commitment to the Local Church, Family Church, gatherings or Jehovah’s Witnesses church in China.  The Tribunal was not satisfied that the first applicant will seek to practice Christianity in China in any church or group if she returns to China now or in the reasonably foreseeable future.

6. The Tribunal was not satisfied the first applicant is or would be perceived to be a member of the Local Church, Family Church, gatherings or Jehovah’s Witnesses church in China.  The Tribunal was not satisfied that any of the first applicant’s family members are members or perceived to be members of the Local Church, Family Church, gatherings or Jehovah’s Witnesses church in China.

7. The Tribunal did not accept that the first applicant was or is of adverse interest to the Chinese authorities. The Tribunal was not satisfied that there is a real chance the first applicant will suffer serious harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future. The Tribunal found that the first applicant did not have a well-founded fear of persecution for a Refugees Convention reason. The Tribunal found that the first applicant did not satisfy the criterion under s.36(2)(a) of the Act.

8. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there is a real risk that the first applicant will suffer significant harm as described under s.36(2A) of the Act. The Tribunal found that the first applicant did not satisfy the criterion under s.36(2)(aa) of the Act.

9. The Tribunal found the second applicant was unable to satisfy the criteria under s.36(2) of the Act. The Tribunal affirmed the decision not to grant the applicants’ protection visas.

Proceedings Before this Court

Non-appearance before the Registrar – 15 September 2016

1. When the application was filed in this Court, a front page was issued with a time and date for hearing that specified 15 September 2016 at 10:15 am. The applicants failed to appear on the date and a Registrar of the Court dismissed the application under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 on 15 September 2016.

2. The Court has before it, an application filed on 18 October 2016 to set aside the order made by the Registrar on 15 September 2016 under r.16.05(2)(a) of the Federal Circuit Court Rules 2001. 

Hearing of Interlocutory Application – 31 October 2016

1. At the commencement of the hearing, the Court explained to the applicants that the Court was hearing the applicants’ application in a case to set aside the default order made in the absence of the applicants. The Court explained that this will require the Court to consider two matters. First, the explanation of the applicants for their failure to appear and secondly, the merits of the application. 

2. The Court explained in relation to the merits of the application that the Court was considering whether the applicants had a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The court explained that the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness to the applicant. The court explained to the applicant that if satisfied that there is an adequate explanation and a sufficiently arguable case on the merits, the default order will be set aside and the matter would be fixed for hearing on another day. 

3. The Court explained to the applicants that if not satisfied that there is an adequate explanation for the failure to appear and a sufficiently arguable case on the merits, the application in a case would be dismissed.

4. The Court explained to the applicants that it would have identified the evidence, then hear submissions from the applicants, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The first applicant confirmed that she understood the nature of the hearing as explained by the Court. 

Consideration of whether the applicants were aware of the hearing date on 15 September 2016

1. The affidavit filed by the applicants in support of the application in a case, asserted that they failed to appear on 15 September 2016, as the applicants had not received a letter of hearing invitation.

2. The first respondent adduced into evidence an affidavit which annexed a letter dated 4 August 2016 which was sent to the applicants’ residential address as notified on the initiating application. The letter notified the applicants of the hearing date and place of hearing as well as, foreshadowing an application to have the matter dismissed for non-appearance if the applicants failed to appear. That letter of 4 August 2016 was also sent to the email address identified on the applicants’ initiating application. 

3. The first applicant asserted from the bar table that she had not received the letter. The first applicant indicated she wished to give evidence in support of that contention. The first applicant was sworn, and gave an explanation initially that she had moved address. The first applicant alleged that she had moved address about a month ago. The first applicant’s Driver Licence shows no change of address. The first applicant’s explanation that she had changed address a month ago does not explain any failure to receive the letter dated 4 August 2016. The first applicant’s explanation for not receiving the email was that the email was apparently the address of an agent who the first applicant could not identify, and that the agent had been in hospital at the time of the hearing.

4. None of those explanations were put in evidence in affidavit form by the first applicant. The first applicant was an unsatisfactory witness and I do not accept her evidence as truthful. I reject the evidence the first applicant gave that she did not receive the letter.

5. On the material before the Court, I find that the applicants were well aware of the hearing date and there is no satisfactory explanation for the failure of the applicants to appear on the hearing date. 

6. However, the more significant consideration is the merits of the application. 

7. The grounds of the application are as follows:-

   I. AAT arranged an unprofessional interpreter for me in the bearing. The interpreter did not display a level of knowledge of Christianity. When l wanted to say more, the interpreter implied me not to say too much. I think that is because the interpreter was not familiar with Christianity knowledge and not be able to interpret correctly what I said. I doubted about the interpreter's capability.

   2. AAT asked me some knowledge about history of Christianity. For some of the question, I could not answer them correctly. Not every follower of the Jehovah's Witness faith knows how to answer those questions. Even my Pastor did not know how to answer all of those questions.

   3. AAT asked me the location of the church. I answered that it was at Homebush. The actual address is 14 Homebush Road Strathfield. I could not understand and speak English very well, so I think Homebush Road is part of Homebush.

   4. AAT did not consider the risk of going back to China as there is real persecution from Chinese Government towards people like us. AAT made the decision regardless my evidence and real situation.

   (Errors in the original)

Consideration of the grounds

1. In relation to Ground 1, the Tribunal did not determine the applicant’s credibility based on the first applicant’s knowledge of Christianity. The adverse findings in relation to the credibility of the first applicant were open on the evidence before the Tribunal and cannot be said to lack an evident and intelligible justification. 

2. There is nothing in the Tribunal’s reasons or any evidence before the Court, to support the assertion of difficulty with the interpreter. On the face of the material before the Court, I am satisfied that the applicants had a real and meaningful hearing and that the Tribunal complied with its statutory obligations in the conduct of the review. There is no material before the court to establish any failure by the Tribunal to comply with the obligations of procedural fairness in the conduct of the review. Ground 1 of the application fails to identify any reasonably arguable case of jurisdictional error. 

3. In relation to Grounds 2 and 3, the Tribunal did not determine the first applicant’s credit by reference to either knowledge of Christianity or the first applicant’s residential address. Grounds 2 and 3 are in substance an impermissible invitation to this Court to engage in merits of view. No arguable case of jurisdictional error is made out by Grounds 2 and 3. 

4. In relation to Ground 4, the Tribunal’s reasons reflect an orthodox approach to the determination of the applicants’ visa applications. The Tribunal correctly identified the relevant law and there is no substance in the proposition that the Tribunal failed to consider the applicants’ claims and evidence. The adverse findings were open to the Tribunal.  Ground 4 fails to make out any arguable jurisdictional error.

5. On 26 October 2016 a facsimile was forward to the solicitor for the first respondent that identified further submissions by the first applicant in support of the current application. Those submissions maintained an assertion that there was a misinterpretation in relation to the first applicant’s evidence. There is no evidence to support any such assertion. The Tribunal’s reasons reflect no misunderstanding of the applicants’ claims and evidence.

6. The adverse findings by the Tribunal are not a basis upon which any allegation of bias could be made out. The conduct of the Tribunal in making the adverse findings is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, fair and impartial mind to the determination of the matter on its merits. No arguable case of bias is made out. 

7. The applicants’ submissions otherwise cavil with the adverse findings including the adverse findings in relation to credibility, none of which disclose any arguable case of jurisdictional error.

Conclusion

1. I take into the account the principles and caution in Spencer v The Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am not satisfied that there would be any utility in setting aside the default order made on 15 September 2016. I am not satisfied that there is any adequate explanation for the failure of the applicants to appear. More importantly, I am not satisfied that there is any sufficiently arguable case on the merits to warrant the setting aside of the order made on 15 September 2016 in the interests of the administration of justice.

2. On the face of the material before the Court, there is no arguable case of jurisdictional error by the Tribunal.

3. The application in a case is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2016