BZM18 v Minister for Immigration
[2019] FCCA 2216
•13 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZM18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2216 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal ignored relevant material submitted by the applicant – whether the Tribunal relied upon irrelevant information in making its decision – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 427 |
| Cases cited: Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 |
| Applicant: | BZM18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1100 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 13 August 2019 |
| Date of Last Submission: | 13 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 13 August 2019 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondents: | Ms Davyskib, Minter Ellison |
ORDERS
The name of the First Respondent to be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1100 of 2018
| BZM18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a Chinese national. The applicant first arrived in Australia on 27 December 2006 on a student visa. The applicant departed Australia and returned shortly thereafter in 2007, 2009 and 2010. The applicant has been continuously in Australia since 6 May 2010.
The applicant’s student visa was cancelled by a delegate of the Minister on 6 September 2011. The applicant sought a review of that decision by the Administrative Appeals Tribunal (“the Tribunal”). On 19 July 2013, the Tribunal affirmed the Minister’s decision to cancel the applicant’s student visa. The applicant then sought ministerial intervention. This was refused on 7 April 2014.
On 17 April 2014, the applicant lodged an application for a protection visa. This was refused by the Minister on 11 September 2015. The applicant then sought merits review in the Tribunal. The applicant appeared before the Tribunal on 22 December 2017 to provide evidence and argument in support of his application. On 19 March 2018, the Tribunal affirmed the decision to refuse the applicant’s protection visa application. The applicant now seeks judicial review of the Tribunal’s decision in this Court.
Administrative Appeals Tribunal’s Decision
The applicant’s claims are set out in paragraphs 22 to 24 of the Tribunal’s decision. However, previously, at paragraphs 19 to 21 of the decision, the Tribunal considered and rejected a request for an adjournment to allow Pastor Raymond Davey to attend and give evidence. The Tribunal concluded that the applicant could submit a letter from Pastor Davey, which the Tribunal received on 29 December 2017. The Tribunal considered the contents of the letter but determined that a further hearing to allow Pastor Davey to give oral evidence was unnecessary.
The applicant claims to have become a Christian when he was nine years of age. When the applicant came to Australia, he attended a variety of Christian churches. The applicant does not wish to return to China as he would only be able to attend registered Christian churches, which he states are dominated by the Chinese government and has corrupted the Christian message. If returned, the applicant states he would not attend a registered church and would attend family gatherings.
At paragraph 25 of its decision, the Tribunal was satisfied that the applicant is Christian in faith and has attended registered churches and family gatherings in China, as well as attending Christian churches in Australia. At paragraphs 26 to 27 of the decision, the Tribunal found that the applicant was not at risk of harm due to his mother’s Christian religious activity or family gathering activities. It found that the applicant’s religious practice would be confined to attending family gatherings if returned to China.
At paragraph 28 of the decision, the Tribunal found the applicant did not fear returning to China due to his religious beliefs. The protection visa application was only lodged after the applicant’s avenues of appeal were exhausted in relation to his student visa. At paragraph 29 of the decision, the Tribunal noted the evidence of the applicant that he had applied for a protection visa as, “he had no option left”. The Tribunal found the lodging of the protection visa application was done to allow the applicant to continue to stay in Australia for non-protection reasons.
At paragraphs 30 to 35 of the decision, the Tribunal found there was no real chance that the applicant would face harm for religious reasons if he returned to China.
ItThe Tribunal found that the applicant did not meet either the primary requirements under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), or the complimentary protection requirements under s.36(2)(aa) of the Act, and accordingly affirmed the Minister’s decision.
Grounds of Appeal
Two Grounds of Appeal were lodged with the Court and argued before it. They are set out as follows:
1) Tribunal ignored relevant material submitted on 29 December 2017 and determined that further hearing would be unnecessary. The content of the material submitted on 29 December 2017 was alike the material provided to the Department of Immigration in my protection visa application in later 2014 as both letters were addressing the same issue raised by the first respondent and second respondent respectively.
2) Tribunal relied on irrelevant information in making its decision on 19 March 2018 and notified my representative on the next day. Member entirely relied on the date when I filed my protection visa application with Department of Immigration which is irrelevant to my protection claims and whether I have genuine fear of returning to China.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented, but was assisted by a Mandarin interpreter. No written submissions were filed, although the applicant had the opportunity to do so. In oral submissions, the applicant told the Court that the Tribunal focussed on the fact that he had lodged his application for a protection visa after he came to Australia and after being here for many years. The applicant stated if he had lodged his protection visa when he first came to Australia, he would not be in this situation. The applicant stated it was only after he was in Australia for a while that he realised the situation in China was terrible.
The applicant said the Tribunal did not make an error of law:
“Basically, it comes down to the Tribunal not believing why I lodged the application so late”.
The applicant asked to be given a second chance for an interview.
The First Respondent’s Submissions
Counsel, on behalf of the first respondent, rejected that the Tribunal failed to consider the letter of 29 December 2017. Counsel submitted that the Tribunal clearly did consider the letter at paragraph 21 of the decision, where it said:
…The Tribunal received the letter on 29 December 2017 (from Pastor Davey) and considered its contents … a further hearing would be unnecessary as the letter repeated the contents of earlier letters and did not rebut any country information put to the applicant.
Counsel for the first respondent submits that there has been no failure to consider claims raised by the applicant (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99). It was submitted that the Tribunal was under no obligation to hold a further hearing. It left the possibility open at the close of the first hearing but declined to do so after considering the letter. The reason given by the Tribunal in not holding a further hearing was evident and intelligible.
In relation to Ground 2, Counsel for the first respondent submitted that this ground alleges the Tribunal took account of an irrelevant consideration, that being the delay in the lodgement of the protection visa application. Counsel for the first respondent submitted the Tribunal considered the applicant’s migration history in its entirety. It considered relevant country information and the applicant’s own admission that he had lodged the application for a protection visa as he had “no options left”.
Counsel for the first respondent submitted that the Tribunal’s findings were reasonably open to it in considering if the applicant satisfied the provisions of s.36(2)(a) of the Act or s 36(2)(aa) of the Act.
As a matter of completeness, Counsel for the first respondent noted what appears to be a typographical error in paragraph 29 of the Tribunal’s decision, where it says:
…demonstrate that the applicant is genuine in his claim and cannot return to China.
It was suggested there should have been a “not” before the words “genuine in his claim he cannot return to China”.
Considerations
Ground One
I firstly accept that there is a typographical error in paragraph 29 of the Tribunal’s decision. I accept the first respondent’s submission that otherwise, the paragraph in which the sentence appears and the decision of a whole, does not make sense.
I accept the reasoning that I was referred of Marshall J in Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 at paragraph [48], where Marshall J said:
…Occasionally the RRT, like other decision-makers, delivers reasons for decision without 100% proofreading. Occasionally, mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682.
I consider that the context in which the issue has been raised is clear and that it does not raise a jurisdictional error (see S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at paragraphs [28] – [34] per Carr J). In any event, I do not think that the matter before this Court turns on that matter one way or the other. As to Ground 1, I reject the submission that the Tribunal failed to consider the letter of 29 December 2017. It plainly did at paragraph 21 of the Tribunal’s decision, where it stated:
The Tribunal received the letter on 29 December 2017 and considered its contents.
The Tribunal then went on to say:
…A further hearing would be unnecessary, as the letter repeated the contents of earlier letters and did not rebut any country information that had been put to the applicant.
The Tribunal was under no duty to call on the author of the letter. It was not under any natural justice obligation to do so, given that it operates under a statutory scheme, pursuant to s.422B of the Act. While the Tribunal has a discretion to adjourn matters, pursuant to s.427(1)(b) of the Act, I am not satisfied that there was anything unreasonable, illogical or irrational in the decision not to hold a further hearing to give the applicant the opportunity to attend and call evidence from the pastor, given that he had already attended before the Tribunal and given evidence.
In its decision, the Tribunal clearly indicated that it told the applicant it would only hold a further hearing “if necessary” after the letter of Pastor Davey was received. There is no jurisdictional error apparent on the face of the record in relation to this ground.
Ground Two
This ground alleges the Tribunal relied upon an irrelevant consideration in taking account of the migration history of the applicant and the timing of when he filed his protection application. In the applicant’s affidavit, which annexes the decision of the Tribunal, the applicant asserted at paragraph 10 of the affidavit that:
The date of lodging my protection visa application became the main and only reason for the Tribunal to affirm the decision.
I do not take that statement as evidence. Rather, I take it as merely an argument put on the applicant’s behalf. In my view, a fair reading of the entirety of the decision indicates that this is not the case. The evidence of the applicant was that he had lodged the protection visa application because “he had no option left”, having failed to gain any extensions to his student visas.
The Tribunal accepted the applicant was of Christian belief, but was also satisfied he did not have genuine fears of returning to China on that basis. It also considered relevant country information. In my view, the migration history of the applicant was not a consideration that was irrelevant, as it was not one:
…either expressly or by implication, a matter that the decision-maker is forbidden or prohibited from taking into account
(See Robertson J in Sachin v Minister for Immigration and Border Protection [2017] FCA 527 paragraph [14]).
Conclusion
Finally, given that the applicant is unrepresented, I have perused the decision of the Tribunal to ascertain whether or not there was any other jurisdictional error which has not been raised by him. None was apparent and I am satisfied that the decision reveals no jurisdictional error.
Accordingly, the application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 24 September 2019
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