CCS15 v Minister for Immigration

[2016] FCCA 192

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 192

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – show cause hearing – bias – alleged mistakes in interpretation – whether Tribunal erred in making adverse credit findings – no arguable case of jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: CCS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2815 of 2015

Judgment of: Judge Street

Hearing date: 5 February 2016

Date of Last Submission: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr R White
Mills Oakley Lawyers

ORDERS

1. The Application is dismissed pursuant to 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 $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2815 of 2015

CCS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) seeking a Constitutional writ in respect of a decision of the Tribunal made on 24 September 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. The applicant obtained a TU 570 student visa and arrived in Australia on 17 May 2012. That student visa was cancelled on 20 February 2013.

2. The applicant applied for protection on 6 December 2013, which the delegate refused on 8 December 2014.  The applicant applied for review before the Tribunal on 28 July 2015.  The applicant was sent an invitation by the Tribunal to appear at a hearing on 19 August 2015 and the applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter. 

3. On 26 November 2015, a Registrar of this Court fixed the matter for hearing today, pursuant to r.44.12 of the Federal Circuit Court Rules2001. The Registrar made directions giving the applicant an opportunity to file an amended application, the affidavit evidence and submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause r.44.12 hearing and the applicant confirmed that she understood the nature of the hearing.

4. In support of the applicant’s claims for protection, she alleged that she had met her husband in 2012 and that he was a committed Christian, as were his parents, and the applicant claimed that she attended many church gatherings and had sought and obtained God’s guidance after a car accident.  The applicant claimed that she was caught and beaten by armed police in November 2007 while attending her church gathering and that the police treated her harshly, as a result of which she alleged she was pushed to the ground and suffered severe pain, in circumstances where she was pregnant and was rushed to hospital.  The applicant claimed that she prayed to God to save her child and was able to come to Australia in 2012 with God’s guidance and the applicant claimed she hated China’s systems and wanted to stay in Australia. 

5. The Tribunal found the applicant to be neither a credible nor reliable witness.  The Tribunal did not accept the applicant’s evidence that she was baptised in Australia.  The Tribunal found that the applicant’s alleged Christian activities were unconvincing.  The Tribunal found the applicant’s evidence was opportunistic and fabricated.  The Tribunal found the applicant’s evidence in relation to her Christian activities to be inconsistent and also took into account the applicant’s delay in seeking protection after arriving in Australia on a tourist visa. 

6. It was in those circumstances that the Tribunal did not believe the applicant had been forthright in giving evidence that she was a Christian or that she attended any Christian church in Australia or participated in any Christian activities in Australia or China or was baptised or involved in an altercation with police in China over her Christian activities.  Accordingly, the Tribunal was not satisfied that the applicant met the refugee or complementary protection criteria. 

7. The grounds of the application are as follows.

   1. I was not considered fairly by the RRT.

   2. RRT has the same conclusion of my credibility.

   3. RRT was not independent and made same decision and has prejudice against me.

8. Ground 1 does not identify any arguable jurisdictional error.  The Tribunal gave reasons for the adverse credibility findings, which are logical and reasonable and were open on the materials before the Tribunal. The applicant was invited to attend and did attend a hearing consistent with the statutory regime and there is nothing to suggest the applicant did not have a genuine hearing.  I note that in the Tribunal’s decision it records that approaching the end of the hearing the applicant was asked if there was anything she wanted to add or say in support of her application and she replied that she did not.  Ground 1 fails to make out any arguable jurisdictional error. 

9. In relation to ground 2, the adverse findings of credit were the subject of identified cogent reasons open on the material and ground 2 fails to disclose any arguable jurisdictional error. 

10. In relation to ground 3, an allegation of bias must be clearly alleged and properly proved.  There is no arguable case of bias on the evidence before the Court and the adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  Ground 3 fails to identify any arguable jurisdictional error.

11. From the bar table, the applicant asserted that the interpreter had used a pen to stop her during her evidence and that the interpreter made mistakes in the interpretation.  No evidence was put on by the applicant in support of these assertions, nor was there identified any particular in respect of which it was said the mistakes were made until after the solicitor for the first respondent addressed the Court. The applicant then alleged that there was a mistake made in relation to the adverse finding concerning baptism and it was alleged that she never told the Tribunal that she understood baptism to involve taking one’s clothes off and putting on others, and the applicant asserted that was an example of a mistake made by the interpreter.  There was no evidence to support this recent assertion. 

12. Then the applicant raised that she wished to obtain the DVD and obtain a transcript.  The Court asked why this had not been done before and the applicant indicated that about two days ago she obtained information from a migration agent by reason of which she was now asking for an adjournment to put on a translation of the DVD.  When asked why the applicant had not complied with the directions made by the Registrar, no other explanation was proffered than the recent communication with the migration agent. 

13. Given the adverse findings by the Tribunal that were delivered on 24 September 2015 and the steps taken to commence these proceedings on 15 October 2015 and the making of the orders on 26 November 2015, I do not accept that an alleged mistake in the interpretation is an issue that only occurred to the applicant two days ago.  I do not accept the applicant’s explanation in relation to why the evidence was not put on.  I do not accept that the assertions of mistakes in the interpretation discloses any arguable jurisdictional error. I find the example of the alleged error to be without substance. There is no basis to believe there was any material mistake in the interpretation of the applicant’s evidence. The Court also accepts the first respondent’s submission that even if the interpreter used a pen to stop the applicant during the course of giving evidence, that does not reveal any argument of jurisdictional error by the Tribunal. 

14. Further, I do not accept the applicant’s assertion that she did not give evidence as identified by the Tribunal in its reasons concerning her understanding of baptism.  Nothing said by the applicant in relation to the alleged errors in interpretation was the subject of any specificity other than the reference in response to the submission of the first respondent concerning baptism.  I do not accept that there is any arguable case of jurisdictional error or denial of procedural fairness in relation to the conduct of the hearing and the role of the interpreter before the Tribunal.

15. The applicant also suggested from the bar table that the Tribunal would not let her put on material from a USB.  There is no evidence to support this assertion and no explanation as to why any such material was not identified by affidavit consistent with the orders made by the registrar on 26 November 2015.  The applicant alleged that the material on the USB related to her baptism.  The proposition that there was material that the applicant was not able to present is contrary to the reference in the Tribunal’s reasons to the invitation towards the end of the hearing as to whether the applicant had anything else she wanted to say or add in support of her application and her response to the Tribunal that there was nothing. 

16. I do not accept anything said by the applicant from the bar table identified any arguable jurisdictional error. I am satisfied that the application fails to disclose any arguable case and that this is an appropriate case in which to exercise the court’s powers under r.44.12 of the Federal Circuit Court Rules2001. 

17. In the course of the hearing, the applicant sought an adjournment in order to obtain the DVD. No earlier notice of that adjournment application had been given to the first respondent. The first respondent opposed the adjournment. I do not accept the applicant’s explanation as to why this matter was only just raised as a result of information provided two days ago. I do not accept that there would be any utility in providing an adjournment. I am satisfied that an adjournment would add to costs which are likely to be unrecoverable and unnecessarily utilise limited court time. In these circumstances, the adjournment was refused and the application is dismissed, pursuant to r.44.12 of the Federal Circuit Court Rules 2001. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:8 February 2016