CGE15 v Minister for Immigration

[2016] FCCA 173

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 173

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the applicant identified the relevance of untranslated documents presented to the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: CGE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2936 of 2015

Judgment of: Judge Street

Hearing date: 3 February 2016

Date of Last Submission: 3 February 2016

Delivered at: Sydney

Delivered on: 3 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. CPD15, the Applicant’s litigation guardian, pay the costs of the First Respondent fixed in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2936 of 2015

CGE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 9 October 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant is a citizen of China and a minor in respect of whom his mother was appointed as the litigation guardian. The claimed fears of harm on behalf of the applicant if returned to China are based on being a black child in China, and being the son of a parent who had been imprisoned in Australia for drug offences.

2. The Tribunal in making adverse findings in relation to those claims, expressed credibility concerns in relation to the evidence of the guardian and gave detailed reasons for rejecting her credibility, which reasons were neither illogical or unreasonable, and were open on the material before the Tribunal.  The applicant and the guardian appeared before the Tribunal on 9 July 2015 to give evidence and present arguments and the hearing was conducted with the assistance of an interpreter.

3. Prior to that hearing, the Tribunal sent the applicant and the guardian the statutory letter inviting appearance before the Tribunal dated 1 June 2015.  Following the hearing on 23 July 2015, the Tribunal sent a letter to the guardian and applicant inviting comment or response in relation to information that identified reasons why the Tribunal may not find the applicant’s mother and the applicant’s father to be witnesses of truth.  The applicant’s invitation after the hearing was the subject of a response by the applicant on 6 August 2015.

4. The grounds of the application are as follows:

   1. The Tribunal member acted arbitrarily and peremptorily.  He refused or rejected everything no matter what I have claimed or submitted as supporting evidence.

   2. The Tribunal member was hard as nails.  I clearly told him that I did not have money to have my documentary evidence translated from Chinese to English, but he refused to consider my particularly difficult circumstance.

   3. The Tribunal member failed to take any genuine attempts to fairly look at my cases but just liked to refuse my application straightaway. 

5. On 3 December 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file any amended application or affidavit evidence and to put on submissions.  No such documents were filed.  In relation to ground 1 in the application, an allegation of bias must be clearly alleged and properly proven.  No allegation of bias is proven in this case.  The Tribunal gave detailed reasons for its findings, and the adverse findings 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.

6. It is clear that the applicant was afforded a genuine hearing.  After the hearing the Tribunal gave the applicant the opportunity to respond to the specific credibility concerns concerning the guardian and the father in relation to the claims on behalf of the applicant.  Ground 1 fails to make out any jurisdictional error. 

7. In relation to ground 2, during the hearing it is clear that there was an attempt to tender a large bundle of material that had not been translated. 

8. The Tribunal gave the applicant’s mother a period of two weeks after the conclusion of the hearing to submit any documents she wished along with any explanation as to their relevance and informed the applicant that the documents must be translated.  No such documents were received from the applicant’s mother and no further request relating to those documents was received by the Tribunal.  Ground 2 fails to make out any denial of procedural fairness or any jurisdictional error. 

9. In relation to ground 3, the proposition that the Tribunal failed to make any genuine attempts to address the case advanced is inconsistent with the detailed reasons of the Tribunal.  There is no substance in the contention of the Tribunal for failing to address the claims advanced on behalf of the applicant, or that the Tribunal acted unfairly.  Ground 3 fails to make out any jurisdictional error. 

10. From the bar table, the applicant raised again a concern that she had not been dealt with fairly by the Tribunal.  For the reasons given that allegation fails to make out any jurisdictional error.

11. The guardian also raised matters of merit review as to why she and her son should not return to China.  Nothing said by the applicant in that regard to identify any jurisdictional error.  The applicant did indicate that the reason why the documents had not been translated was that she did not have any money to translate the documents.  The Tribunal identified in relation to the untranslated documents that the applicant did not provide the Tribunal with an adequate explanation as to the relevance of the information.  The Tribunal gave the applicant’s mother a period of two weeks from the conclusion of the hearing to submit the documents she wished together with any explanations as referred to earlier and that the documents must be translated.

12. It is not apparent that the Tribunal was informed that the applicant was unable to afford the cost of translation.  It is of significance that the Tribunal required identification as to why the documents were relevant, and that nothing was put on by the applicant identifying that relevance in relation to the opportunity given by the Tribunal.  The inability of the applicant to pay for the cost of translation of the documents does not make out any jurisdictional error by the Tribunal.  The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 February 2016