CFF17 v Minister for Immigration

[2017] FCCA 2268

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFF17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2268

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – show cause hearing – no arguable case of relevant legal error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 91R, 476.

Federal Circuit Court Rules 2001, r.44.12.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CFF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1608 of 2017

Judgment of: Judge Street

Hearing date: 18 September 2017

Date of Last Submission: 18 September 2017

Delivered at: Sydney

Delivered on: 18 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell
MinterEllison

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1608 of 2017

CFF17

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 27 April 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Indonesia and her claims were assessed against that country. The applicant arrived in Australia on 8 September 2014 on an FA600 tourist visa. That visa was granted on 24 July 2014 and was valid until 8 December 2014. Six days before the tourist visa was about to expire, the applicant lodged an application for protection on 2 December 2014.

3. The applicant claimed to fear harm on that occasion by reason of an ex-boyfriend. The delegate on 1 June 2015 found the applicant failed to meet the criteria for the grant of the visa.

The Tribunal’s decision

1. The applicant applied for review on 2 July 2015. By letter dated 13 March 2017, the applicant was invited by the Tribunal to attend a hearing on 19 April 2017. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal in its reasons identified the background to the review and correctly set out the relevant law. The Tribunal summarised the applicant’s claims that had earlier been made before the delegate. The Tribunal summarised what occurred at the hearing, including the applicant informing the Tribunal that her former boyfriend had been killed in an accident and that she no longer required protection for the reasons she had claimed in her application. The applicant, however, claimed to fear harm owing to racial and religious tensions and to fear harm by reason of being a Chinese Christian.

3. The Tribunal discussed with the applicant the country information the Tribunal identified in relation to the applicant’s claims. The Tribunal accepted that there was no longer a real chance or risk of the applicant being harmed by reason of her former boyfriend having been killed.

4. The Tribunal was not satisfied there was a real risk as opposed to a remote chance or a risk of the applicant suffering serious or significant harm should she return to Indonesia now or in the reasonably foreseeable future as a consequence of her Chinese ethnicity, Christian religion, or a combination of both.

5. The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant failed to meet the criteria under s.36(2)(a). The Tribunal also found the applicant failed to meet the criteria under s.36(2)(aa) and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the application are as follows:

   1. The Administrative Appeals Tribunal had bias against me and did not consider my application in accordance with S91R of the Migration Act 1958. The Tribunal failed to consider my claims.

   2. The Tribunal denied the applicant natural justice or procedural fairness.

   3. The Tribunal made the decision without allowing the applicant an opportunity to be heard in relation to adverse allegations made against her by the Tribunal.

2. On 24 August 2017, a Registrar of the Court made orders fixing this matter for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing to determine whether the applicant had an arguable case. The Court explained that this required an arguable case of relevant legal error by the Tribunal. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair.

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

Applicant’s written submissions

1. From the bar table, the applicant handed up written submissions that sought to take issue with the country information relied upon by the Tribunal and the findings of the Tribunal in relation to that country information. The submissions also attached media articles that were not before the Tribunal.

2. The Court indicated to the applicant that the material annexed to the submissions, on its face, did not appear to have been before the Tribunal, and the applicant confirmed that was the position. The Court indicated that the Court had no power to receive further evidence in relation to the applicant’s claims. The documents annexed to applicant’s submissions were marked “MFI 1”.

3. The applicant’s submissions sought to cavil with the adverse findings by the Tribunal made by reference to the country information before the Tribunal. Nothing in the written submissions identifies any arguable jurisdictional error. In substance, the submissions invite the Court to engage in impermissible merits review. This Court does not have power to review the merits.

4. From the bar table, the applicant maintained that the information that she had provided was not able to be provided to the Tribunal as it was not in existence then. That does not identify a basis upon which the new information could be received by the Court into evidence or upon which any arguable jurisdictional error could be made out. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

5. The Registrar of the Court had made orders on 24 August 2017 giving the applicant an opportunity to file amended applications, affidavit evidence, and submissions. The only document provided to the Court on the date of the hearing was the applicant’s submissions together with the articles that the Court had marked “MFI 1” and refused to admit into evidence on the grounds of not being relevant.

Consideration of grounds

Ground 1

1. In relation to Ground 1, the Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims under the Refugees Convention. Section 91R has been replaced by s.5J that applied at the time of the hearing before the Tribunal in respect of the applicant’s claims. On the face of the material before the Court, the Tribunal correctly set out the relevant law. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

2. 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. Nothing has been identified on the material before the Court to suggest that the Tribunal approached the review other than with an open mind reasonably capable of persuasion. No allegation of bias is proved.

3. The proposition that the Tribunal failed to consider the applicant’s claims is inconsistent with the Tribunal’s reasons. The Tribunal made dispositive findings in respect of the applicant’s claims. Those findings were open to the Tribunal, and cannot be said to lack an evident and intelligible justification. No arguable case of jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, the generalised assertion of a denial of procedural fairness or natural justice does not identify any arguable case of jurisdictional error. Ground 2 fails to make out any arguable case of jurisdictional error.

Ground 3

1. In relation to Ground 3, on the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. For the reasons earlier given, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. The applicant attended the hearing and the Tribunal’s reasons reflect the applicant having a real and meaningful hearing. No arguable case of jurisdictional error is made out by Ground 3.

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 case of 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 Rules2001.

2. Accordingly, the application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

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

Date: 18 October 2017