CHS19 v Minister for Immigration

[2019] FCCA 2138

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHS19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2138

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Safe Haven Enterprise visa – whether the applicant had a real and meaningful hearing before the Tribunal – whether the Tribunal denied procedural fairness to the applicant – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 425, 476

Applicant: CHS19

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1446 of 2019

Judgment of: Judge Street

Hearing date: 5 August 2019

Date of Last Submission: 5 August 2019

Delivered at: Sydney

Delivered on: 5 August 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr H Gao
AGS

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00

DATE OF ORDERS: 5 August 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1446 of 2019

CHS19

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 May 2019 affirming the decision of a delegate not to grant the applicant a Safe Haven Enterprise visa.

2. On 17 March 2013, the applicant arrived in Australia. On 28 March 2019, the applicant applied for a Safe Haven Enterprise visa. The applicant was found to be a citizen of Taiwan and his claims were assessed against that country.

3. The applicant identified that he had been convicted of the criminal offence of “large importation of prohibited substance” in Australia in 2014. The applicant identified that he has been in gaol in Australia for approximately 6 years. The applicant identified that he is currently in Villawood Detention Centre.

4. The applicant claimed to fear harm on the basis that he will be pressed by Triads to take full responsibility for drugs which were seized. The applicant also claims that the Triads will kill him if he returns to Taiwan.

5. On 3 April 2019, a delegate found that the applicant does not meet the criteria for the grant of a Safe Haven Enterprise visa. Later on 3 April 2019, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 18 April 2019, the applicant was invited by the Tribunal to attend a hearing on 7 May 2019.

6. On 7 May 2019, the applicant appeared at the hearing to give evidence and present arguments. The applicant was assisted at the hearing by a Mandarin interpreter, having completed a form identifying that he needed a Mandarin interpreter. The Tribunal’s reasons record that the applicant confirmed he understood the Mandarin interpreter.

7. In the course of the hearing, the applicant requested that the Tribunal contact his sister. The Tribunal noted that the applicant did not provide to the Tribunal his sister’s date of birth, but provided a telephone number in Taiwan and a female answered the phone. The Tribunal recorded the substance of the evidence taken from the person alleging that she was the applicant’s sister. Nowhere in the summary of what occurred did the Tribunal identify any difficulty conveyed to the Tribunal by the person telephoned. It is also apparent that the Tribunal had the benefit of the interpreter in the course of the hearing. The Tribunal also noted that, after the hearing, a letter was provided to the Tribunal and the Tribunal obtained a translation of the letter.

8. The Tribunal identified the background to the application for review. The Tribunal summarised the relevant law and attached the relevant statutory provisions to its reasons. The Tribunal identified the applicant’s background and summarised the applicant’s claims. The Tribunal also referred to information the applicant alleged he had recently received and which his sister had sent from Taiwan.

9. The applicant claimed he had family as well as personal safety issues. The Tribunal raised with the applicant why his father had not been the subject of any harassment. The Tribunal also explored with the applicant why he did not know the current addresses of his family members and referred to the applicant’s different explanations as to how his visa application was completed. The Tribunal found that the applicant had changed his evidence to allege that his father goes back and forth between China and Taiwan. The applicant also identified that he had previously been in Indonesia, Thailand and China.

10. The Tribunal was not satisfied that key elements of the applicant’s claims are credible. The Tribunal found that the applicant’s oral evidence was vague, improbable and unsupported by the available country information. The Tribunal referred to raising with the applicant its concerns and found that the applicant changed his evidence and the facts he was claiming.

11. The Tribunal referred to the applicant’s desire to return to China in circumstances where he alleged he feared the Triads. The Tribunal also raised with the applicant that Taiwan is a functioning democracy with an effective police force. The Tribunal preferred the independent country information to the applicant’s evidence in relation to the ability of the Taiwanese police force to be effective if the applicant is in danger. The Tribunal referred to giving the applicant an opportunity to expand on his fear and that the applicant was not able to do so in any convincing or persuasive manner. The Tribunal took into account the applicant’s inability to explain why he wanted to return to live in Hong Kong or China and that his position shifted over the course of the hearing.

12. The Tribunal referred to photographs which had been provided by the applicant. The Tribunal also referred to the evidence taken from the applicant’s sister which was broadly supportive of her brother. The Tribunal also referred to the written statement which the applicant claimed was from his sister and reiterated his claims. The Tribunal also referred to the sister’s evidence but did not accept the same.

13. The Tribunal accepted that the applicant's mother had a diagnosis of breast cancer in 2013. The Tribunal also found, however, that the applicant’s assertion his father had cancer was only introduced at the hearing when he was queried as to why he gave inconsistent evidence of where his father was and why his father was not at risk. The Tribunal took into account that no medical evidence was provided in this regard.

14. The Tribunal found that the applicant was not a credible witness and rejected his claims that he will be harmed if he returns to Taiwan in their entirety. The Tribunal took into account that, if the applicant had a genuine fear, he would not have stated that he wants to return to live in China. The Tribunal also took into account that the applicant’s family has returned to Taiwan to live. The Tribunal did not accept that if the applicant’s family were in any genuine fear they would have returned to live in Taiwan. The Tribunal found that if the applicant’s family were likely to suffer serious harm they would not have returned to Taiwan to live.

15. The Tribunal did not accept that there is a real chance the applicant will suffer serious harm or significant harm at the hands of the Triads if he were to return to Taiwan. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution in Taiwan for reasons of his race, religion, nationality, membership of a particular social group, or his political opinion if he returns to Taiwan now or in the reasonably foreseeable future. The Tribunal found that the applicant does not meet the requirements of the definition of “refugee” in s 5H(1) of the Act.

16. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Taiwan from Australia, there is a real risk he will suffer significant harm. The Tribunal found that the applicant does not meet the criteria under ss 36(2)(a) or 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. On 12 June 2019, these proceedings were commenced by the applicant who is in detention. On 11 July 2019, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant has not put on any such documents.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

Adjournment

1. From the bar table, the applicant sought an adjournment. The applicant handed up to the Court a bundle of documents which included an application made to Justice Connect on 2 July 2019, which included a notation that it was declined, and a letter apparently sent on 30 June 2019 from Legal Aid New South Wales which identified a potential response within 30 days. The applicant indicated that he wanted to obtain legal representation and be represented by a lawyer. The applicant confirmed that, in the circumstances, he was making an adjournment application.

2. The adjournment application was opposed by the first respondent. The first respondent relied upon the lack of merits of the substantive application and the futility of granting an adjournment in the circumstances of the applicant’s case.

3. The Legal Aid application does not give rise to a stay of the proceedings in this Court. Furthermore, the 30 days has expired which was referred to in the letter from Legal Aid New South Wales as the estimate for a response. There is nothing before the Court to support any grounds for believing that the applicant will be granted legal aid or a legal representative in these circumstances. The application for legal aid is not a sufficient basis for the Court to grant an adjournment in circumstances where these proceedings commenced on 12 June 2019 and orders were made on 11 July 2019 fixing the matter for hearing today.

4. Where an applicant is in detention, this Court ordinarily endeavours to hear the case as an extradited matter. In the absence of any reason why the applicant would be successful in the application for legal aid, or any basis for believing that the applicant will obtain legal representation, there is no proper ground to support an adjournment.

5. The requests made by the applicant to Justice Connect and Legal Aid are not of themselves a sufficient basis upon which an adjournment should be granted. Further, it is apparent from the material handed up that Justice Connect has declined to assist the applicant, and the period of time for Legal Aid’s response, albeit an estimate, has expired. In the absence of further evidence, the Court does not regard the documents marked as Exhibit B as providing any proper basis upon which an adjournment should be granted.

6. The Court also takes into account the submission of the first respondent and the first respondent’s opposition to the adjournment application. The Court finds that the merits for the substantive application are wanting and accepts the first respondent’s submission that an adjournment in these circumstances would be futile.

7. There is no proper basis for the Court to conclude that an adjournment will give rise to the applicant being legally represented. The Court is not satisfied, taking these matters into account, that an adjournment is warranted in the interests of the administration of justice.

The grounds

1. The grounds in the application are as follows:

   1. The applicant never had a real and meaningful hearing.

   2. There was a breach of s 425 of the Migration Act 1958 (Cth) that Tribunal breached the requirements of procedural fairness by reason of flawed translation during the hearing.

   3. There was a mistranslations amount to a material breach of s 425- jurisdictional error established.

Ground 1

1. In relation to ground 1, the unparticularised assertion that the applicant never had a real and meaningful hearing does not of itself identify any jurisdictional error. The Tribunal’s detailed reasons are inconsistent with the proposition that the applicant did not have a real and meaningful hearing. The Tribunal’s reasons summarise what occurred during the hearing and the raising of issues in respect of the applicant’s claims with the applicant at the hearing. The Tribunal also took evidence from the applicant’s sister.

2. Insofar as it might have been suggested that there was an interpretation difficulty, or at least the interpreter mistranslated the applicant, the Tribunal’s reasons expressly record the applicant conveying that he understood the Mandarin interpreter. There is nothing on the face of the Tribunal’s reasons which reveals any difficulty by the applicant’s sister in understanding and responding to the Tribunal member. Further, the Tribunal, as is apparent from its reasons, took into account a further communication received from the applicant’s sister after the conclusion of the hearing which went to the merits of the applicant’s claims.

3. There is no basis to find, on the evidence before the Court, that the applicant did not have a real and meaningful hearing. The Tribunal’s reasons, which refer to the applicant having the opportunity to give evidence and present arguments as well as the analysis of the evidence, are inconsistent with any such adverse finding. The Court is not satisfied that the applicant had other than a real and meaningful hearing. No jurisdictional error, as alleged in ground 1, is made out.

Ground 2

1. In relation to ground 2, no evidence has been adduced in support of the assertion of flawed translations. There has been no identification of any material matter in respect of which it was alleged there was an interpretation error. For the reasons already given, it is apparent that the Tribunal, in its reasons, confirmed that the applicant understood the Mandarin interpreter. On the face of the material before the Court, the Tribunal complied with its statutory obligations and no breach of s 425 of the Act is made out. No jurisdictional error, as alleged in ground 2, is made out.

Ground 3

1. Ground 3 is, in substance, a repetition of ground 2. No particulars are provided in support of a mistranslation and no evidence has been adduced to identify any material mistranslation. In these circumstances, no jurisdictional error is made out by ground 3.

2. From the bar table, the applicant maintained that he provided everything to the Tribunal to support his claims. It was a matter for the Tribunal to determine whether it accepted the applicant’s claims. The adverse findings by the Tribunal appear supported by logical and rational reasons and were open to it on the evidence before the Tribunal.

3. The applicant referred to a communication in relation to his sister subsequent to the Tribunal hearing. That appears to be a reference to the request for the identification details of the applicant’s sister in a communication dated 8 May 2019. That communication does not, however, identify any basis upon which it can be said there is any breach of s 425 of the Act by the Tribunal or any jurisdictional error.

4. The applicant also referred to the evidence given by his sister. It is apparent, on the face of the Tribunal’s reasons, that the Tribunal had a real and meaningful engagement with the evidence adduced on behalf of the applicant’s sister.

5. The adverse credibility findings were open to the Tribunal for the reasons given by the Tribunal. The applicant’s disagreement with the same does not identify any jurisdictional error. The Court accepts the submissions of the first respondent that the applicant’s submissions from the bar table otherwise invited the Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table makes out any jurisdictional error.

6. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 September 2019