AYS15 v Minister for Immigration
[2015] FCCA 2865
•23 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYS15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2865 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Protection (Class XA) visa – show cause hearing – whether Tribunal erred in making adverse findings against the applicant – whether applicant has an arguable case for jurisdictional error – no arguable case identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 426B, 430, 476, 477 Federal Circuit Court Rules 2001, r.44.12 |
| SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 SZLPH v Minister for Immigration and Citizenship [2008] FCA 744 |
| Applicant: | AYS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1549 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 23 October 2015 |
| Date of Last Submission: | 23 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Ms N. Maddocks DLA Piper |
ORDERS
The amended application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs fixed in the sum of $3416.
NOTATION:
Please note that Order 1 has been amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1549 of 2015
| AYS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the decision of the Tribunal made on 12 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of China whose claims were assessed against that country as the country of nationality and the receiving country.
On 16 July 2015, the Registrar made orders fixing the matter for today for hearing for a r.44.12 show cause hearing and made orders providing an opportunity for the applicant to file an amended application, affidavit, and submissions. No documents were filed by the applicant. The grounds of the application are as follows:
I. The Tribunal erred in finding that China's laws and regulations applied generally to the unregistered churches and its followers. There is no evidence to support the underground Catholic church the applicant attended is allowed by the China government.
2. The Tribunal failed to consider and issue that arose on the information before the Tribunal, and in its findings, as to whether the applicant would face a well-founded fear of persecution, or a real risk that he would suffer significant harm as a result of the underground church inadvertently challenging the interests or authority of the Chinese Government.
The applicant arrived in Australia on 9 September 2007 on a UL459 visa. The applicant applied for protection which was refused on 25 October 2007, and the decision of the delegate was affirmed by the Tribunal on 13 March 2008.
The applicant lodged an application for judicial review which was dismissed on 16 September 2008. The applicant lodged a subsequent application on 29 September 2009, and this was refused on 9 September 2010. The applicant made a request for ministerial intervention on 29 September 2009 and was notified that the request would not been considered on 28 January 2011. The applicant was granted a bridging visa on 2 February 2011 which expired on 27 February 2011, and the applicant then became an unlawful person in Australia. The applicant subsequently lodged a further application for protection on 25 September 2013 consistent with the principles in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 on the grounds of complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth).
The delegate refused to grant the applicant a protection visa on 23 May 2014. The applicant lodged an application for review on 9 June 2014. Subsequent to the lodging of that application for review, the Tribunal member purported to issue a corrigendum, dated 24 June 2015, purporting to correct what was an obvious error in a heading. It is clear, from para.6 of the Tribunal’s reasons and the assessment of the questions as found in para.49, that the Tribunal correctly understood its task in relation to the application for the protection visa. I am satisfied that the error in the heading was a typographical error and did not deflect the Tribunal from focussing upon the correct question in relation to the review.
There is no power in the Act expressly conferred permitting correction of typographical errors by the Tribunal, albeit there is some authority to support a typographical error being made by a corrigendum in SZLPH v Minister for Immigration and Citizenship [2008] FCA 744 at [29]. Whilst there is considerable force in the logic, identified at [29], in correcting typographical errors that may arise from the delivery of reasons for decision without 100 per cent proofreading, whereby typographical errors may arise, the scheme of the Act, in s.430, and the notification obligations under s.426B, as well as the time constraint in relation to an application to this Court under s.477, do not sit neatly with the power to issue a corrigendum, albeit limited to a typographical error.
On the face of the statutory scheme, it would appear that the Tribunal is functus officio, once the steps under ss.430 and 426B have been carried out in relation to typographical errors. However, it is not necessary to determine that issue in this case, as the typographical error is obvious on the face of the reasons of the Tribunal, dated 12 May 2015, and, further, that typographical error did not give rise to any deflection from the statutory task required of the Tribunal or the focus on the correct question in respect of complementary protection grounds raised by the applicant. Accordingly, I treat the corrigendum as having no effect, whether or not there is any power to issue the same.
The applicant claimed to fear persecution from the Chinese government because he is a Catholic and attended underground Catholic churches in China. The applicant claimed to have assisted study groups for middle-aged and senior people. The applicant made claims of past harm as a result of driving a priest to a meeting in 2004 and being intercepted by police and detained for 15 days and assaulted. The applicant claimed that, in July 2007, the church people warned him that police were waiting at his house.
Consistent with the statutory regime, the applicant was invited to attend a hearing, by a letter, dated 25 February 2015, for hearing on 19 March 2015. The applicant attended on that date to give evidence and present arguments and was assisted by a chaplain. The hearing was conducted with the assistance of an interpreter, but, due to an issue raised in relation to that interpreter, the hearing was rescheduled for 4 May 2015, and, again, consistent with the statutory requirements, the applicant was sent a letter, dated 10 April 2015 inviting the applicant to appear on 4 May. It is clear the applicant appeared on that day to give evidence and present arguments and was assisted by an interpreter, as well as a representative for the applicant.
In the reasons of the delegate, the delegate noted that the applicant said he was illiterate. However, no claim as to fear of persecution on the grounds of illiteracy was articulated before the delegate or before the Tribunal. The reference to illiteracy arose in the context of the applicant explaining his religious knowledge. At the hearing today, the applicant raised the fact that he was illiterate in the context of the criticisms about his credibility. I accept the first respondent’s submission that no claim of illiteracy, as a fear of the applicant, was articulated by the applicant and no such claim arose upon the materials before the Tribunal, and that the applicant reference to illiteracy does not give rise to any arguable case of jurisdictional error.
The Tribunal identified that there were significant inconsistencies in the applicant’s evidence with the statement the applicant had made, and the Tribunal raised with the applicant concerns about his credibility in relation to those inconsistencies which the Tribunal set out at paras.21 to 30. The Tribunal noted, in relation to the applicant’s application for a visitor visa that the applicant informed the Tribunal that the documents had been fabricated. Relevantly, the Tribunal found:
35. The applicant said that on 20 January 1989 four people came in a “white van” and abducted him from his home for 14 days. He did not know who abducted him because his eyes were blindfolded. The Tribunal questioned the applicant if he knew why he was abducted. The applicant said the people were asking him questions about the letters he was distributing. They assaulted him and burnt his legs and he thought he would be killed. The applicant said he did not know what to say because he did not have much knowledge about the JVP and was unable to name anyone from the JVP. He was eventually put in the van and thrown out in the street and had to make his way home. The Tribunal asked the applicant why he was the only person abducted. The applicant said that others were also taken. When asked to explain how he knew that others were abducted the applicant said he had heard in the news at the time that there were many abductions in Sri Lanka.
36. The Tribunal questioned the applicant about the circumstances of his release. The applicant said he was released because his mother’s sister’s husband was a captain in the Sir Lankan Army (SLA). The Tribunal asked the applicant how the captain knew that he was abducted and where to find him. In response the applicant claimed that at the time many young people were abducted. The applicant said his mother told him that the captain secured his release but he was not rescued by the SLA. He said the captain never told him what happened.
…
46. In assessing the applicant’s claims the Tribunal has had regard to the most recent UNHCR December 2012 Eligibility Guidelines for assessing the protection needs of asylum seekers from Sri Lanka refer to a series of profiles which, whilst not intended to be exhaustive, indicate the following categories of persons who the UNHCR considers may need international refugee protection, depending on the individual circumstances of the case:
(i) persons suspected of certain links with the LTTE;
(ii) certain opposition politicians and political activists;
(iii) certain journalists and other media professionals;
(iv) certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations seeking justice;
(vi) women in certain circumstances;
(vii) children in certain circumstances; and
(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.
…
49. The Tribunal accepts the applicant was a low level ordinary supporter of the UNP which was the main opposition party in Sri Lanka prior to the most recent presidential elections held in January 2015. In this regard the Tribunal finds the applicant is no different to many hundreds of thousands of other ordinary UNP supporters in Sri Lanka. Consequently the Tribunal does not accept the applicant was of any interest to the SLFP or the Sri Lankan government because of his imputed or actual political activity in Sri Lanka supporting Fonseka and the UNP.
50. The Tribunal has also had regard to the most recent DFAT report on Sri Lanka dated 16 February 2015 which provides the following information about the recent presidential elections in Sri Lanka.
2.30 Sri Lanka is a Democratic Socialist Republic. The President is directly elected and is Head of State, Head of Government and Commander-in-Chief of the armed forces. Sri Lanka’s President, Maithripala Sirisena, was elected to office in January 2015. He was formally sworn in on 9 January, along with the leader of the United National Party (UNP), Ranil Wickremesinghe, as Prime Minister. As of 13 February 2015, legislation was being drafted to realise President Sirisena’s commitment to introduce amendments to the Constitution to transfer executive powers exercised by the President to the Prime Minister, the Cabinet of Ministers and to Parliament. A central commitment of Sirisena’s election manifesto was to reduce the powers of the Executive Presidency and place a limit on terms in office (which had been removed by former President Rajapaksa in 2010). The manifesto also refers to plans to establish independent commissions for the judiciary, police, elections, auditing institutions and office of the Attorney-General.
…
3.33 Political representation in Parliament is broadly proportional to the overall population–there are 27 Tamils and 18 Muslims out of a total of 225 members. President Sirisena presides over a diverse coalition, consisting of more than a dozen political parties including Muslim, Tamil and Buddhist parties. There are two Tamil and four Muslim Ministers in the current Cabinet. Two Tamils and one Muslim serve as State Ministers and one Tamil and two Muslims serve as Deputy Ministers in the current Government.
3.34 There are currently no banned political parties in Sri Lanka. Political parties are generally free to operate, subject to legal restrictions. This applies both to high-profile elected representatives and office holders and low-profile party members, supporters and volunteers, including people putting up fliers or handing out leaflets. There is no evidence to suggest this differs between representatives of Sinhalese, Tamil, Muslim or other parties.
I accept the first respondent’s submission that ground 1 of the application is an impermissible challenge to the adverse findings by the Tribunal and does not disclose any arguable jurisdictional error. It is clear that the Tribunal, at para.46, relied upon country information, and it was a matter for the Tribunal to determine what weight to give that information. No arguable jurisdictional error is made out by ground 1.
In relation to ground 2, I accept the first respondent’s submission that no claim was advanced before the delegate or the Tribunal and that no claim arose on the papers that the applicant would be harmed due to inadvertently challenging the authority or interests of the Chinese government. No such claim was expressly articulated and as stated no such claim arose on the material before the Tribunal. Ground 2 fails to make out any arguable jurisdictional error.
From the bar table, the applicant raised issue with the adverse findings in respect of his evidence, albeit that he admitted that he had fabricated documents, and the applicant raised that his parents had told him not to go back to China because he would die there, and the applicant said he would rather die here. The applicant maintained that he was from the country and that he was persecuted, and raised that his wife was bullied.
The applicant said he was very depressed and raised that he had never been to school. The applicant said he was afraid of the authorities and that he had obtained information from a priest in China and in Australia and asserted that they wouldn’t tell lies. The applicant referred to his children, and that they had informed him that the government wants to arrest him and referred to an incident with his wife in which her ribs were broken, and asserted that he was tortured and had a scar and complained that no one believed him.
This Court has limited jurisdiction, confined to determining whether or not the Tribunal engaged in a jurisdictional error. The hearing here today was to determine whether or not the application identified any arguable jurisdictional error within r.44.12. Nothing said by the applicant from the bar table identified there was arguable jurisdictional error. This Court does not have power to make fresh findings of fact. The grounds of the application fail to identify any arguable case of jurisdictional error. I accept that this is an appropriate case for the Court to exercise its power under r.44.12, and that the application should be dismissed. The application is dismissed under r.44.12(1)(a).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 27 October 2015
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