CBA15 v Minister for Immigration

[2016] FCCA 355

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 355

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal dialled to make adequate enquiries – whether the Tribunal failed to take the applicant’s medical issues into account – whether the Tribunal erred in making adverse credit findings against the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: CBA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2739 of 2015

Judgment of: Judge Street

Hearing date: 22 February 2016

Date of Last Submission: 22 February 2016

Delivered at: Sydney

Delivered on: 22 February 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2739 of 2015

CBA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitution writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision of the Tribunal made on 8 September 2015. The applicant arrived in Australia on 10 December 2010 as the holder of a visitor visa. The applicant left Australia on 27 February 2011 and returned to China. On 16 March 2011 the applicant returned to Australia on the same visitor visa. On 11 May 2011 the applicant made his first application for a protection visa which was refused by the Department. On 12 December 2011 the Tribunal affirmed the Department’s decision.

2. The applicant unsuccessfully sought judicial review.  Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant made a second application for a protection visa on the grounds of complementary protection on 24 August 2013. The applicant claimed to fear harm in China because of certain activities he undertook when he lived in China and when he criticised the government. The applicant also claimed to fear harm in China following his dealings with a consular office in Sydney.

3. The application for review was lodged on 2 June 2014 and on 27 January 2015 the applicant’s representative identified the applicant was undertaking some medical treatment in relation to his back and asserted that the applicant would be unable to provide testimony for the next one to two months.  Whilst there was evidence of medical treatment, it did not identify an inability of the applicant to in fact attend. 

4. On 15 May 2015, well after the one to two months referred to in the communication of 27 January, the Tribunal wrote to the applicant inviting the applicant to appear at a hearing to be held on 26 June 2015.  On 29 May 2015 by facsimile the applicant’s migration agent suggested the applicant would not be fit to give testimony on the 26 June 2015 due to his medical conditions and requested a delay of the hearing.  Nothing was provided to support the assertion that the applicant would be unable to give testimony.

5. On 9 June 2015 the Tribunal wrote to the applicant refusing the request to adjourn the matter and identified that, to support such a request, there had to be medical evidence to the effect that the applicant’s condition prevented the applicant from attending the hearing and identifying when the applicant would be fit.

6. Following that refusal of an adjournment by the Tribunal, the applicant’s representative sent in a response for hearing identifying that the applicant would attend and suggesting that the applicant intended to call his daughter.

7. On 24 June 2015 the applicant’s representative made a further request for an adjournment which again failed to provide any medical evidence supporting the proposition that the applicant would be unable to attend to give evidence before the Tribunal. 

8. On 24 June 2015 the Tribunal refused to grant the adjournment and confirmed that the matter remained fixed for hearing on 26 June 2015.  The Tribunal included reasons for the refusal of the postponement, noting that the presiding member had considered the request carefully but had decided not to postpone the hearing.  Those reasons noted that the applicant had not provided a medical certificate specifying what his claimed illness was and why it prevented him from attending the hearing and when he would be fit to attend to hearing.

9. In response to that communication, the applicant’s agent on 24 June 2015 sent another facsimile confirming the applicant would attend the hearing and again identifying the applicant’s daughter would attend to give evidence.

10. The applicant appeared before the Tribunal on 26 June 2015 to give evidence and present arguments.  The applicant’s daughter was not called.  The Tribunal found the applicant was not a witness of truth and rejected the applicant’s claims, making a finding that all of the claims were false.  The Tribunal gave detailed reasons in relation to the inconsistencies in the evidence of the applicant and the raising by the Tribunal of those inconsistencies with the applicant.  The adverse credit findings made by the Tribunal were open on the material before the Tribunal.

11. The grounds of the application are as follows:

    1. The Refugee Review Tribunal and the Department Case Officer did not make enough enquiries into my interactions with the Chinese Consulate.

    2. The member did not consider my medical difficulties when scheduling the hearing, questioning me or making the decision. 

    3. The member did not give me enough time to give information about my medical condition which is outside of my control. 

12. On 19 November 2015, the Registrar of the Court fixed the matter for hearing and gave the applicant an opportunity to file an amended application, an affidavit and written submissions.  No such documents were filed.

13. In relation to the first ground, I accept the first respondent’s submission that there is nothing to suggest that the Tribunal was at any time requested to make any inquiries and that the absence of steps taken by the Tribunal to contact the Chinese consulate does not identify any jurisdictional error by the Tribunal.  It was for the applicant to make out his claims and this is not a case where contacting the Chinese Consulate was an obvious fact or easily ascertained matter that could give rise to any obligation upon the Tribunal to contact the consulate.  Ground 1 fails to make out any jurisdictional error. 

14. In relation to ground 2, it is clear from the history of the matter that the Tribunal did take into account the applicant’s medical difficulties in relation to the scheduling of the hearing and did consider the applicant’s request for an adjournment and gave reasons for the refusal of the adjournment that cannot be said to lack an evident and intelligible justification. 

15. In relation to the conduct of the hearing and the decision of the Tribunal, it is clear that the Tribunal took into account the applicant’s injury to his back but did not accept that the injury explained the inconsistencies in his evidence.  The Tribunal also referred to making allowance in assessing the applicant’s credibility in relation to his injuries, but did not accept that the applicant’s inconsistent evidence about his dealings with the Chinese consulate, was for any reason other than the fact that the applicant had fabricated that evidence.

16. The Tribunal also noted that during the course of the hearing, frequent breaks were taken during the hearing, and the applicant appeared to be well able to comprehend the questions he was asked and to respond to them.  The Tribunal noted that the applicant and the interpreter, to its observation, communicated without any difficulty.  The Tribunal also took into account the applicant’s injuries in relation to the healthcare which he would receive in China.

17. Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal and does not disclose any jurisdictional error.

18. Ground 3, in relation to the assertion that the applicant was not given enough time to give information about his medical condition is without substance, given the history identified above.  It is clear that the applicant had ample opportunity to present medical evidence about why his back injury might impact on his ability to appeal or give evidence, and no such evidence was adduced.  Ground 3 fails to make out any jurisdictional error.  It was reasonable for the Tribunal to proceed to conduct the hearing on 26 June 2015.

19. From the bar table, the applicant identified that all the documents he provided were true.  That appears to be a reference to the documents provided concerning the consulate.  None of those documents explained away the inconsistencies in the applicant’s evidence.  The applicant also identified that the Tribunal had found inconsistencies in his evidence and maintained that he had been telling the truth.

20. The Tribunal identified the applicant’s inconsistencies at length, and, as indicated above, the adverse credit findings were open to the Tribunal.  Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 February 2016