AOY15 v Minister for Immigration

[2015] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOY15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2214

Catchwords:
MIGRATION – Administrative Appeals Tribunal – (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal adequately considered the applicant’s claims and evidence – whether the Tribunal had regard to the relevant statutory provisions – bias – whether bias properly alleged and proved – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: AOY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1158 of 2015

Judgment of: Judge Street

Hearing date: 14 August 2015

Date of Last Submission: 14 August 2015

Delivered at: Sydney

Delivered on: 14 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1158 of 2015

AOY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 March 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Indonesia, and his claims were assessed against that country. The applicant had come to Australia in 2005 on a tourist visa, and it was almost five years after that that he applied for protection in Australia.

2. The applicant’s original application for protection was refused by the delegate on 31 January 2011 and his review application was affirmed by the Tribunal on 26 May 2011.  Consistent with the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicant lodged a further application for protection based on the complementary protection criterion. That application was refused by the delegate on 5 May 2014.

3. The applicant was sent an invitation on 20 January 2015 to attend a hearing on 19 March 2015, which the applicant attended to give evidence and present arguments and was assisted by an interpreter.  The Tribunal identified the applicant’s claims and evidence in respect of his fear of significant harm, first as a result of a used car business that he had in a particular location and gangsters who had extorted money from him, and secondly because he was an ethnic Chinese Indonesian citizen and, further, because of his Catholic religion. 

4. The Tribunal addressed each of the integers of the applicant’s claims and relevantly made adverse findings as follows:

   50     The Tribunal does not accept that the applicant was targeted for extortion for any reason other than because he was perceived to have money. The applicant has not claimed that his ethnicity was a contributing factor in the extortion.

   51     The Tribunal does not accept that the extortion was the reason that the applicant’s business deteriorated. The Tribunal notes that the applicant claimed that the reason he was beaten was that he had no money coming into the business because he was not selling cars. The Tribunal accepts that the business did not fail because he was paying the extortion demands. It failed because the applicant was not selling cars. The Tribunal therefore does accept the conduct of the gang members amounts to significant harm as defined in s set out in in s.36(2A): (paragraph 6 above).

   52     The Tribunal accepts the applicant’s original statement in his second protection application that his problems stopped for a while after he went to the police. This is consistent with the country information about the availability of State protection in Indonesia for all citizens.

   53     The Tribunal accepts that the applicant has not worked in Australia for some time. It accepts that if he returns to Indonesia he will have to find work to support his family. The applicant accepts that if he were to accumulate sufficient capital it would be open to him to again open a business. The Tribunal accepts, given the country information; that this may result in the applicant again having to pay extortion money if he were to decide to go into business. The Tribunal accepts that the extortion will occur for criminal motives. It does not accept that such extortion would amount to significant harm.

   54     The Tribunal, on the basis of the evidence before it, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm in the terms set out in paragraph 6 above because he was the subject of extortion in Indonesia more than 10 years ago. 

   …

   64     The Tribunal notes the applicant’s claims that he would be discriminated against when seeking employment because of his age and his ethnicity. The Tribunal does not accept that this is the case. The applicant is still relatively young, is relatively well educated and has marketable skills. While there may be societal discrimination against ethnic Chinese the Tribunal does not accept that the applicant will be denied the opportunity to subsist because of his ethnicity.

   65     The Tribunal, on the basis of the evidence before it, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm in the terms set out in paragraph 6 above because of his ethnicity.

   …

   69     The Tribunal finds that the risk of the applicant suffering significant harm because of his religion is remote.

   70     The Tribunal, on the basis of the evidence before it, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm in the terms set out in paragraph 6 above because of his religion.

   71     The Tribunal has considered the extortion claim, the ethnicity claim and the religion claim cumulatively. In addition it has considered the applicant’s claim that he will be poor and unable to find a job because of his age if he were to return to Indonesia. The Tribunal does not accept the applicant will be denied employment (and therefore accommodation) because he is poor or because of his age.  Those factors may make it more difficult for someone in his position to be recruited but the applicant also does have many years of work experience. In any event the applicant is 49 years old notwithstanding his age; he is not physically unable to work.

   72     The Tribunal is satisfied, on the basis of the evidence before it, and having considered his claims individually and cumulatively, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Indonesia, there is a real risk that he will suffer significant harm.

5. It was in those circumstances the Tribunal concluded that the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant did not meet the criteria under s.36(2)(aa). The application identified the following grounds:

   1. The Refugee Review Tribunal accepted that I was a victim of extortion and that I was threatened and beaten yet denied that I was targeted for extortion for any reason other than because I was perceived to have money. As a result of such finding the Tribunal misapplied the law and denied me protection especially that I will be harmed and subjected to further extortion which would affect my well being.

   2. The Refugee Review Tribunal relied on country information which confirmed the problem in Indonesia yet acted contrary to the fact that I will be harmed by the same people who harmed me in the past.

   3. I wish to inform that I will obtain copy of the Record of Interview and submit in support of my application.

6. Ground 1 appears to be an impermissible challenge to the adverse findings made by the Tribunal.  The findings made by the Tribunal were clearly open and cannot be said to lack an evident and intelligible justification.  To the extent that ground 1 seeks to advance that the Tribunal misapplied the law, it is clear that the Tribunal carefully identified the statutory provisions in relation to complementary protection, and there is no substance in the assertion of an error of law by the Tribunal in its assessment of the complementary protection criteria.  Ground 1 does not make out any jurisdictional error. 

7. In relation to ground 2, I accept the first respondent’s submission that it was a matter for the Tribunal to determine what weight is given to country information, and it is clear from para.17 and attachment A to the Tribunal’s reasons that careful consideration was given to the country information in relation to assessing the applicant’s claims.  I accept the first respondent’s submission it that there is no jurisdictional error revealed by ground 2 of the grounds of the application. 

8. In relation to ground 3, the transcript before the Tribunal was tendered and has been read by the Court.  There is no apparent jurisdictional error that arises on the face of the transcript and there is nothing in ground 3 to articulate any jurisdictional error.  

9. The applicant handed up a written submission which appeared to expand on the grounds of potential jurisdictional error.  To the extent that the written submission asserted that the Tribunal had made a finding in para.21 of the Tribunal’s reasons, the submission is erroneous, as the Tribunal was doing no more than identifying the issues in that paragraph.  The balance of the submission appears to be a challenge to the adverse findings made by the Tribunal.  Those adverse findings were clearly open to the Tribunal and cannot be said to lack an evident intelligible and justification. 

10. To the extent that the written submission refers to the applicant’s Catholic religion, it is clear that this claim was the subject of consideration and an adverse finding by the Tribunal.  Nothing in the written submission identifies any jurisdictional error.  The applicant advanced orally that the decision of the Tribunal was not fair and that he was really scared and he would die if he went back to Indonesia.  To the extent that the applicant advanced that the Tribunal decision was unfair, it is clear that the applicant had a genuine hearing and that the Tribunal conducted the review in accordance with the statutory provisions. 

11. No breach of the requirements of procedural fairness has been established by the applicant. I accept the first respondent’s submission that, to the extent that the applicant was seeking to advance an allegation of bias, bias must be clearly alleged and proved.  Moreover, the making of adverse findings cannot of itself establish bias.  I accept the first respondent’s submission that bias has not been proved.  I accept the first respondent’s submission that a fair-minded observer, by reason of the adverse findings, might not believe that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

12. There was no jurisdictional error revealed from anything said orally by the applicant, and the applicant otherwise sought to appeal to emotional considerations and the merits as he perceived the matters that had been dealt with by the Tribunal.  This Court is not a Court of general appellate rehearing and does not have jurisdiction to determine the facts afresh.  The Court is confined to determining whether or not the review by the Tribunal was one that exceeded the jurisdictional power of the Tribunal or was conducted in a manner which gave rise to a denial of procedural fairness. 

13. Nothing put in writing or orally by the applicant establishes that the Tribunal exceeded its statutory authority or that the review was conducted contrary to the principles of procedural fairness.  The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 August 2015