CCW19 v Minister for Immigration - [2020] FCCA 209

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCW19 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 209

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to comply with sub-s 426(3) of the Migration Act 1958 (Cth) – whether it was legally unreasonable for the Tribunal not to expressly consider exercising the discretion in s 427 of the Migration Act 1958 (Cth) – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 425A, 426, 427, 476

Cases cited:

BLO15 v Minister for Immigration and Border Protection [2017] FCA 1092

First Applicant:

CCW19

Second Applicant:

CCX19

Third Applicant:

CCY19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1296 of 2019

Judgment of:

Judge Street

Hearing date:

4 February 2020

Date of Last Submission:

4 February 2020

Delivered at:

Sydney

Delivered on:

4 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr T Bagley

Solicitors for the Applicant:

MyVisa Lawyers

Counsel for the Respondents:

Ms A Carr

Solicitors for the Respondents:

Mills Oakley

ORDERS

The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The first applicant is appointed as the litigation guardian for the third applicant and the Court dispenses with the need for any further compliance with the Federal Circuit Court Rules 2001 (Cth) in that regard.
The Court will hear matters SYG1296/2019 and SYG1297/2019 concurrently, however, evidence in one will not be evidence in the other.
The amended application is dismissed.
The first applicant and second applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 4 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1296 of 2019

CCW19

First Applicant

CCX19

Second Applicant

CCY19

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 April 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) visas (“Protection visas”).
The applicants were found to be citizens of Fiji and their claims were assessed against that country. On 20 December 2014, the first applicant and the second applicant arrived in Australia on visitor visas valid to 17 March 2015. The first applicant was granted three further visitor visas valid to 31 January 2016. The second applicant is the partner of the first applicant. After arriving in Australia with the first applicant on 20 December 2014, the second applicant departed Australia for Fiji from 23 January 2015 to 6 March 2015 and was granted a further visitor visa valid to 31 January 2016. The third applicant is a minor born in 2016 and the daughter of the first applicant and the second applicant.
The Court made an order at the hearing today appointing the first applicant the litigation guardian for the third applicant.
The first applicant and the second applicant applied for Protection visas on 28 January 2016 and the third applicant was included in the application. The applicants claimed to fear harm on the basis that their freedom of worship was and will be jeopardised on return to Fiji, that they would be suspected of involvement in the Social Democratic Liberal Party (“SODELPA”) and being politically opposed to the government and as they have applied for asylum in Australia.
On 25 October 2016, the Delegate found that the applicants failed to meet the criteria for the grant of Protection visas. Relevantly, in that regard, the Delegate made adverse credibility findings. The Delegate did not accept the second applicant’s written statement that the military came to her home when they were holding religious gatherings and that members of the group were pushed aside and held at gunpoint.
On 3 November 2016, the applicants applied to the Tribunal for review of the Delegate’s decision.
On 8 February 2019, in compliance with s 425A of the Act, a letter was sent to the applicants inviting them to attend a hearing on 25 March 2019. That letter explained that, having considered the material before it, the Tribunal was unable to make a favourable decision on that information alone. The letter also identified a need for consideration and completion of the “Response to hearing invitation – MR Division” form (“response”). The letter correctly requested that the response be completed and returned within seven days after receiving the invitation.
A response completed on 15 February 2019 was sent which did not identify any request for the calling of a witness.
A further response was completed on 18 March 2019, approximately a week before the hearing date. The further response referred to a witness, being a particular person described as the “mother-in-law of applicant one / mother of applicant 2”. In relation to the direction “Describe this person’s evidence and how it is relevant to your case” there is a reference to “She was present when police came to the home during religious meetings.”
It is apparent that the topic upon which the witness was proposed to be called is the same topic upon which the Delegate had rejected the applicant’s evidence.
The applicants, pursuant to s 5AAA of the Act, had an obligation to provide all particulars their claims and to provide sufficient evidence to establish the claim.
The Tribunal in its reasons identified the background to the application for review and the applicants’ circumstances. The Tribunal summarised the applicant’s claims and evidence.
The Tribunal made comprehensive adverse credibility findings in relation to the applicants’ claims. Those adverse findings were the subject of seven logical and rational reasons in support of the adverse credibility findings.
Given the parties’ representation by counsel, it is not necessary to summarise each of those findings. It is sufficient to say that the Tribunal found that it did not accept that the applicants are credible witnesses and was not satisfied on the evidence before it that the applicants were truthful witnesses as to their claims.
The Tribunal did not accept that the applicants or the members of their family were targeted, harassed, assaulted, pushed, had guns pointed at them, verbally or physically abused, threatened, watched or intimidated by any branch of the military or police at any time in Fiji as they were holding regular religious meetings, suspected of holding political meetings, suspected of being supporters of SODELPA or being in political opposition to the government because they come from an area known to oppose the government.
The Tribunal did not accept that the applicants had at any time since they departed Fiji been of any interest to the authorities, military or police as being suspected of being in opposition to the government, or for any of the reasons claimed.
The Tribunal accepted that the applicants are Christians and will practice their religion by attending or personally holding religious meetings and going to church on Sunday on return to Fiji.
The Tribunal took into account country information. The Tribunal did not accept that the applicants face a real chance of persecution involving serious harm or any threat of harm if they return to Fiji in the reasonable foreseeable future as failed asylum seekers or because they applied for protection or on account of their perceived opposition to the government or due to any dispute with a cousin or rumours in the Fijian community.
The Tribunal found that the applicants do not face a real chance of persecution involving serious harm or of being unable to practise their religion if they return to Fiji in the reasonably foreseeable future, on account of their religion, due to holding religious meetings in their or their family’s home, leading or attending religious meetings at any time, being unable to practise their religion, being perceived to be in opposition to the government, being perceived to be a member of SODELPA or being imputed with an opinion in opposition to the government on account of coming from a SODELPA area.
The Tribunal found that the applicants failed to meet the criteria under sub-ss 36(2)(a) and 36(2)(aa) of the Act.
Accordingly, the Tribunal affirmed the decision under review.

Ground in the Amended Application

The ground in the amended application is as follows:
1. The Tribunal breached s 426(3) of the Migration Act 1958 (Cth) (the Act) and/or unreasonably failed to consider the exercise of its discretionary power in s 427(1)(a) of the Act.
Particulars
a. in their ‘response to hearing invitation’ dated 18 March 2019 (CB 384), the applicants requested the Tribunal exercise its power under s 427(1)(a) to take oral evidence from a witness identified by the applicants in that response;
b. the Tribunal failed to consider the applicants’ request in breach of s 426(3) and/or at all; and/or
c. the Tribunal unreasonably failed to consider the exercise of its discretionary power in s 427(1)(a) to call oral evidence from the applicants’ nominated witness.
Mr Bagley of counsel on behalf of the applicant submitted that there were two limbs to ground (1), the first being an alleged non-compliance with sub-s 426(3) of the Act and the second being an unreasonable failure to consider the exercise of the discretion in s 427 of the Act.
In relation to the first limb, Mr Bagley sought to find support for the proposition that there may have been a non-compliance or breach with a passage of the learned Charlesworth J in BLO15 v Minister for Immigration and Border Protection [2017] FCA 1092 at [34].
The passage identified does not provide any basis for an assertion that in the circumstances of the present case there could be found to be a breach of sub-s 426(3) of the Act. On no view was there a notification within the requirements identified under sub-s 426(2) of the Act. Accordingly, there is no scope for application of sub-s 426(3) of the Act being breached in the present case, quite apart from the document relied upon by the applicants as giving rise to the breach being a second response well outside the time period. No breach of sub-s 426(3) of the Act has been identified. It is not necessary on this occasion for the Court to consider whether it was reasonably arguable.
In relation to the second limb, Mr Bagley submitted that the connection between the applicants and the proposed witness was identified on the further response. Mr Bagley also submitted that the topic upon which oral evidence might be adduced was also identified on the further response. Mr Bagley also submitted that there is no express reference in the Tribunal’s reasons to the consideration of whether or not the witness should be called.
In these circumstances, Mr Bagley submitted that the witness was one in respect of which it was legally unreasonable for the Tribunal not to expressly consider whether to exercise the power under s 427 of the Act to require the witness to give evidence.
In the present case, there was no identified mobile telephone number for the witness and no statement provided by the witness.
The topic upon which the witness proposed to give evidence has been the subject of adverse credibility findings by the Delegate. The applicants were also represented at the hearing before the Tribunal, the transcript of which has been tendered into evidence. There was no request for the Tribunal to contact the witness in the course of that hearing.
In these circumstances, the absence of an express consideration of the exercise of the power under s 427 of the Act cannot be said to lack an evident and intelligible justification. The assertion of legal unreasonableness is not made out.
No jurisdiction error as alleged in ground 1 is made out.
Accordingly, the amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:

Date: 5 March 2020