AZT16 v Minister for Immigration

[2016] FCCA 2409

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZT16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2409

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal impermissibly made adverse findings in relation to the applicant’s faith – whether the Tribunal considered relevant factors in its adverse credibility findings – no jurisdictional error identified – application dismissed.   

Legislation:

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

Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

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

Applicant: AZT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1044 of 2016

Judgment of: Judge Street

Hearing date: 15 September 2016

Date of Last Submission: 15 September 2016

Delivered at: Sydney

Delivered on: 15 September 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper Australia

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1044 of 2016

AZT16

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 March 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Indonesia. The applicant arrived in Australia on 20 September 2013 as the holder of a Visitor (subclass 600) visa granted on 13 July 2013. That visa was valid until 20 December 2013. However, it was not until 19 September 2013 that the applicant lodged an application for a Protection visa. 

3. The applicant claimed to be a Jemaah Ahmadiyah follower and claimed to fear harm from mainstream Islam. The applicant claimed that he was attacked while praying in a small mosque in 2005. The applicant did not join the local Ahmadiyah community or make any attempt to establish contact with the Ahmadiyah community in Australia since his arrival in Australia.

The Delegate’s Decision

1. The delegate found the applicant’s claims, to be an Ahmadiyah follower not to be credible. The delegate found the applicant’s claims were not credible and was not satisfied that the applicant had a well-founded fear of persecution for a Refugees Convention reason.

2. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic of Indonesia, there is a real risk that he will be subject to significant harm.

The Tribunal’s Decision

1. On 3 November 2014, the applicant lodged an application for a review of the delegate’s reasons that were delivered on 8 October 2014. By letter dated 14 December 2015, the applicant was invited to attend a hearing on 20 January 2016. 

2. The applicant appeared on that date to give evidence and the applicant was represented by his registered migration agent. Following that hearing, the applicant was given until 5 February 2016 to provide further information.  Further time was also provided in relation to post-hearing submissions. However, no such submissions were received by the Tribunal.

3. The Tribunal identified the relevant law and set out the applicant’s claims and evidence. The Tribunal found the applicant not to be a truthful or credible witness and the Tribunal provided reasons in support of those adverse findings.  Part of those reasons included the delay of the applicant in applying for protection, as well as the absence of the applicant making any attempt to contact the local Ahmadiyah community in Australia.

4. The Tribunal did not accept that the applicant is, or ever was a follower of the Ahmadiyah religion. The Tribunal did not accept there is a real chance that the applicant would be persecuted if he returned to Indonesia because he is an Ahmadi. The Tribunal noted that the applicant had not claimed a fear of persecution for any other reason. The Tribunal did not accept there is a real chance that the applicant will be persecuted for any of the Convention reasons if he returns to Indonesia.  The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.

5. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had a Protection obligation under the Refugees Convention, and found that the applicant did not satisfy the criteria under s.36(2)(a) of the Act.

6. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic of Indonesia, there is a real risk that he will suffer significant harm. The Tribunal found that the applicant failed to meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings Before this Court

1. On 16 June 2016, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

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

   1. I request the decision handed down by the Administrative Review Tribunal (ATT) on the 24th of March 2016 be quashed as a result of several Jurisdictional errors in reaching a decision.

   2. The Administrative Review Tribunal (AAT) has determined that my failure to attend a Mosque in Australia is a reasonable ground for the denial of my review application.

   For a Muslim his prayer is his spiritual diet, of which he partakes five times a day, but while Islam has given permanence to the institution of prayer by requiring its observance at stated times and in a particular manner, it has also left ample scope for the individual himself to select what portions of the Holy Qur'an he likes and to make what supplications his soul yearns after. General directions have no doubt been given, and on these the whole of the Muslim world is agreed, for these directions were necessary to secure regularity, method, and uniformity, but in addition to these, ample scope has been left for the individual to give vent to his own feelings before the great Maker of the universe with regard to the time and mode of prayer.

   In consideration of the AAT presiding members limited knowledge of the Muslim faith and the resulting Jurisdictional error in reaching a refusal decision of my review on the grounds of not attending a Mosque, I request the Federal Circuit Court review the decision reached by the Administrative Review Tribunal which has incorrectly viewed may failure to attend a Mosque for prayer as sufficient grounds for denial of my review application.

   3. I . . . have undertaken a “Hijrah” - (Moving from a land where a Muslim cannot practice his faith to a land where he can). In a decision handed down by the presiding member of the AAT which states,

   “Secondly, despite claiming that he came to Australia with the intention of seeking protection, the applicant did not apply for a protection visa until 3 months after his arrival. If the applicant had genuinely feared persecution in Indonesia when he arrived in Australia, I believe that he would have lodged an application in a more timely fashion"

   Migration regulations state,

   To make a valid application immigration policy states you must:

   ·   indicate the class of visa that you want;

   ·   use the correct form; or

   ·   lodge an application via the internet (where applicable);

   ·   provide your residential address;

   ·   pay the required charge (where applicable);

   ·   satisfy any other requirements (for example, you may have to be outside Australia to apply for the visa); and

   ·   send or deliver your application as instructed by the specific visa application form, or contact the general enquiries line for assistance. You must also:

   ·   complete the application in English;

   ·   answer all questions truthfully - if you provide incorrect information or documents, your visa may not be granted; and

   ·   provide originals or certified copies of any required documents unless the department advises otherwise.

   I . . . lodged a valid application for a Class XA Protection visa as the holder of a valid substantive visa within 12 weeks of my arrival in Australia. At no time have I overstayed any visa in Australia. The fact that that presiding member of the AA T has emphasized that it took me 12 weeks to lodge a further visa application as a reasonable ground for refusal is insufficient grounds for a refusing my application and can only be viewed as a Jurisdictional error taking into consideration that at all times since my arrival in Australia I have complied with all of Australia's Migration regulations and applied for a Protection visa in a timely manner and whilst be a lawful non-citizen of Australia.

   (Applicant’s name removed from original)

3. At the commencement of the hearing, the Court explained to the applicant that the matter had been listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The Court explained that a show cause hearing was a hearing to decide whether the applicant had an arguable case.

4. The Court explained that this meant the Court was considering whether the applicant had an arguable case that the Tribunal’s decision was affected by 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 that, in summary, this meant the Court was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was unlawful or a reasonably arguable case that the Tribunal’s decision was unfair. 

5. The Court explained that if satisfied that the Tribunal’s decision was the subject of a reasonable argument of relevant legal error, the application would be fixed for hearing on another occasion. The Court explained to the applicant that if not satisfied that the Tribunal’s decision is the subject of a reasonable argument that is affected by relevant legal error, the application would be dismissed. The applicant confirmed that he understood what had been said by the Court. 

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

7. From the bar table, the applicant maintained that he believed the decision of the Tribunal was unfair. On the material before the Court, the applicant had a genuine hearing and the Tribunal complied with its statutory obligations in the conduct of the review. There is no material before the Court to support any reasonably arguable case that the Tribunal failed to comply with the requirements of procedural fairness in the conduct of the review. What was said by the applicant from the bar table was in substance, a disagreement with the adverse findings by the Tribunal. 

8. The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  The applicant also said from the bar table that he thought the adverse finding in relation to his credibility was unfair. That adverse finding was open on the material before the Tribunal. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

9. In relation to the grounds in the application, Ground 1 is a bare assertion of error and does not identify any arguable jurisdictional error. 

10. Ground 2 reflects a misunderstanding of the Tribunal’s reasoning in relation to the adverse credibility findings. I accept the first respondent’s submission that Ground 2 fails to identify any arguable jurisdictional error.  I accept the first respondent’s submission that there is no arguable case that the Tribunal impermissibly treated itself as engaged in that task of an arbiter of faith. The adverse findings in relation to the applicant being a follower of Jemaah Ahmadiyah were orthodox.  Ground 2 fails to disclose any arguable jurisdictional error. 

11. In relation to Ground 3, I accept the first respondent’s submission that the assertions by the applicant in relation to compliance with requirements under Australian law does not identify any jurisdictional error. The reasoning of the Tribunal in relation to the delay was a relevant factor that the Tribunal was entitled to take into account in its adverse credibility findings. Nothing said in Ground 3 identifies any arguable jurisdictional error by the tribunal. 

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. 

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:10 November 2016