ASW15 v Minister for Immigration

[2015] FCCA 2287

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASW15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2287

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal was under an obligation to obtain further evidence – whether the Tribunal’s decision lacked an evidence and intelligible justification – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 476

SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91

First Applicant: ASW15

Second Applicant: ASX15

Third Applicant: ASY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1310 of 2015

Judgment of: Judge Street

Hearing date: 24 August 2015

Date of Last Submission: 24 August 2015

Delivered at: Sydney

Delivered on: 24 August 2015

REPRESENTATION

The First and Third Applicants appeared in person

Counsel for the First Respondent: Mr M J Smith

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

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

2. The application is dismissed.

3. The Applicants pay the First Respondent’s costs fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1310 of 2015

ASW15

First Applicant

ASX15

Second Applicant

ASY15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 (Cth) in respect of a decision of the Tribunal made on 16 April 2015 affirming a decision of the delegate not to grant the applicants’ protection (class XA) visas. It was the first applicant who maintained a claim for protection and the second and third applicants lodged applications as a member of the family unit. No separate claims for protection were lodged by the second and third applicants.

2. The first applicant claimed a fear of persecution on the grounds of her son being homosexual and alleged incidents involving two relatives.  Relevantly, the Tribunal rejected the first applicant’s claim both as to her son’s homosexuality and in relation to the alleged incidents involving the relatives.  The grounds of the application are as follows:

   1. The Member of the Tribunal misunderstood the case and acted contrary to the evidence before him especially the issue of homosexuality of our son.

   2. The Member's decision is based on assumption rather than on the evidence and material before the Tribunal and previously before the Department of Immigration concerning the protection visa of the son.

   3. I ask the Honourable Court to take into consideration the transcript of 5 March 2015 before Member Shanahan.

3. The Court had the benefit of the transcript which was also tendered.  Orders were made on 18 June 2015 providing the applicants an opportunity to file an amended application, put on further affidavit evidence and/or submissions.  The applicants filed submissions in Court today.  Those submissions sought to agitate the adverse findings by the Tribunal.  I am satisfied that the adverse findings were open on the material before the Tribunal and cannot be said to lack a logical foundation. 

4. To the extent that the submissions advanced a proposition that the adverse findings were unreasonable, I am satisfied that the findings of the Tribunal cannot be said to lack an evident and intelligible justification. To the extent that the submissions criticised the independent country information taken into account by the Tribunal, it was a matter for the Tribunal to determine what weight to give to the independent country information.  To the extent that the submissions identified that there was some further inquiry that the Tribunal should have embarked upon, this was elaborated upon in oral submissions by the third applicant, identifying the other Department of Immigration file or Tribunal file relating to the first applicant’s son.

5. I accept the first respondent’s submission that there was no jurisdictional error by reason of the Tribunal not embarking upon an exercise obtaining the migration file or Tribunal records relating to the first applicant’s son. I accept the first respondent’s submission it was open to the applicants to seek to tender information if believed to be relevant from the first applicant’s son’s application for review by the Tribunal, and that there was no failure by the Tribunal to properly conduct a review within the statutory obligation arising under s.425 and s.424A by reason of not taking steps to obtain information relating to the applicant’s son in the Department file or before the Review Tribunal. Nothing said orally by the applicants identified any ground upon which the Court can find a jurisdictional error.

6. Ground 1 of the application is in substance an impermissible challenge to the adverse findings of fact by the Tribunal.  It is clear from the evidence before the Court that the Tribunal member explored with the applicants the issue of the applicant’s son’s homosexuality and the adverse finding in relation to the first applicant’s son’s homosexuality was open on the material before the Tribunal.  There is no substance in relation to ground 1.

7. Ground 2 appears to be a challenge to the adverse finding in relation to the son’s homosexuality and the alleged incident involving the relatives. This was a fact finding matter for the Tribunal, the findings were open on the material and cannot be said to lack a logical foundation.

8. The first respondent drew attention to the different finding in relation to the first applicant’s son’s homosexuality by the delegate at p.165 compared to that of the Tribunal on para.50 and I accept the first respondent’s submission that it is clear from the transcript that the Tribunal squarely raised the issue as to the son’s homosexuality and raised the issue of credibility in relation to that claim.   Accordingly ground 2 fails to make out any jurisdictional error.  Further, insofar as ground 2 seeks to advance that the Tribunal should have obtained other information, for the reasons I have given, there is no substance in this ground.

9. Ground 3 does not identify any independent jurisdictional error and the Court has taken into account the transcript that was tendered in evidence.  The Court raised with the first respondent whether para.44 of the Tribunal’s reasons was capable of being read as propounding a claim for protection by the third applicant consistent with the capacity of the third applicant to raise such a claim as identified in SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91. I accept the first respondent’s submission that even if para.44 is treated as giving rise to a claim for protection by the third applicant, it was squarely identified as being for the same reason as identified by the first applicant and no other separate claim was advanced. I accept the first respondent’s submissions that this was clearly the subject of an adverse finding in paras.64 and 66 by the Tribunal.

10. The first applicant also raised from the bar table her health and a level of blindness.  Neither matter was raised in the course of the hearing before the Tribunal as an issue adversely affecting the first applicant’s ability to respond to the Tribunal.  No separate claim was raised in relation to the first applicant’s blindness and health. Neither matter gives rise to any jurisdictional error.

11. I also note that the Tribunal complied with the statutory obligation in s.425 in respect of all three applicants as to the invitation to hearing by the letter dated 10 February 2015 and that all three applicants attended the hearing. The second applicant confirmed that he had no separate claims to those of his wife.

12. The applicants were found to be citizens of Jordan and their claims were assessed against that country.  I am satisfied that the applicants had a genuine hearing and that the adverse findings by the Tribunal were open on the material before the Tribunal.

13. The application fails to make out any jurisdictional error.  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: 27 August 2015