Cim15 v Minister for Immigration

[2017] FCCA 2397

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIM15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2397

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether hearing invitation complied with s.425A of the Migration Act 1958 (Cth) – whether exercise of Administrative Appeals Tribunal’s discretion in proceeding under s.426A of the Migration Act 1958 (Cth) was exercised according to law – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 425A, 426A, 441A, 441G,474, 476
Migration Regulations 1994 (Cth), reg.4.21

Cases cited:
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Stretton [2016] FCAFC 11
Kaur v Minister for Immigration and Border Protection [2016] FCA 132
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

First Applicant: CIM15

Second Applicant: CIN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3013 of 2015

Judgment of: Judge Emmett

Hearing date: 28 September 2017

Date of Last Submission: 28 September 2017

Delivered at: Sydney

Delivered on: 28 September 2017

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Mr Andrew Keevers
Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3013 of 2015

CIM15

First Applicant

CIN15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 13 October 2015, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 11 March 2015 refusing the applicants protection visas.

2. The first named applicant (“the Applicant”) claims to be a citizen of the China and of Christian faith, who fears harm from Chinese authorities in China. The second named applicant is the wife of the Applicant; she is a member of the family unit but is not making specific claims.

Background

1. On 17 January 2014, the Applicant was granted a class FA subclass 600 (Tourist) visa.

2. On 22 January 2014, the Applicant arrived in Australia.

3. On 22 April 2014, the Applicant’s class FA subclass 600 (Tourist) visa expired.

4. On 23 April 2014, the Applicant became an unlawful non-citizen.

5. On 6 May 2014, the Applicant lodged an application for a Protection visa.

6. On 8 May 2014 the Applicant was granted a Bridging visa C which was valid until 14 July 2014.

7. On 14 May 2014, the Applicant was granted a Bridging visa C, which is currently in effect.

8. On 2 February 2015, the Applicant was interviewed in relation to his Protection visa application.

9. On 11 March 2015, the Delegate refused the Applicant’s application for a Protection visa.

10. On 8 April 2015, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

11. On September 3 2015, the Tribunal wrote to the applicants’ migration agent, inviting the applicants to appear before the Tribunal to give evidence and present arguments at a hearing on 8 October 2015.

12. On 8 October 2015, there was no appearance by or on behalf of the applicants at the scheduled hearing.

13. On 13 October 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection visa.

14. On 5 November 2015, the applicants’ migration agent filed an application in this Court on the applicants’ behalf seeking judicial review of the Tribunal’s decision.

The Tribunal’s review and decision

1. On 7 April 2015, the applicants’ migration agent lodged an application for review on behalf of the applicants in respect of the Delegate’s decision.

2. The Applicant provided no further documents in support of his review application.

3. On 3 September 2015, the Tribunal wrote to the applicants’ migration agent informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 8 October 2015 to give oral evidence and present arguments.

4. The Applicant did not attend that hearing and did not give oral evidence.

5. The Tribunal noted that it had before it the Department of Immigration and Border Protection’s file (“the Department”), the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal was satisfied that the applicants were properly notified in the manner indicated in their application for review. The Tribunal made its decision on review, without taking any further action to enable the Applicant to appear before it, pursuant to s.426A of the Act.

7. The Tribunal found that the applicants were nationals of China.

8. The Tribunal was not satisfied that the applicants had provided sufficient detail to satisfy the Tribunal of their claims.

9. The Tribunal was not satisfied that the applicants met the statutory elements for the grant of protection under the refugee criterion.

10. The Tribunal also considered whether the applicants met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that they did not.

11. Accordingly, the Tribunal found that there was no substantial reason for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, China, there is a real risk that the applicant would suffer significant harm.

12. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of a Mandarin interpreter. The Applicant confirmed that he attended a directions hearing before a registrar of this Court on 10 December 2015 and on that occasion was given leave to file and serve an amended application, any further evidence, and submissions in support of his application. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. 

2. Before inviting the Applicant to say whatever he wished in support of his application to this Court for judicial review, I explained that it was not for this Court to reconsider the Applicant’s claims and reach different findings or conclusions. I explained that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to him that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the Tribunal’s jurisdiction. I further explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establish such a mistake.

3. The Applicant confirmed that he had no further documents to provide to the Court this morning in support of his application and that he continued to rely on the grounds as reflected in his initiating application. 

4. Each of the grounds was interpreted for the Applicant as follows:

   “1. DIBP HAVE DESCRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION AND COUNTRY’S SITUATION.

   2. DIBP FAILED TO COMPLY WITH REFUGEE REGULATION.

   WE WERE MISTREATED AND   PERSECUTED

   3. AGENT FAILED TO INFORM US OF RRT HEARING TIME DUE TO IGNORANCE.”

   (Errors in original)

5. The Applicant was invited to say whatever he wished in support of those grounds.

6. The grounds of the application make bare assertions that do not disclose an error capable of review by this Court. The Applicant had nothing further to say in support of either ground 1 or 3. In support of ground 2 the Applicant simply restated that he was here to escape from persecution. 

7. I explained to the Applicant that he had failed to attend a hearing before the Tribunal to which he had been invited. I explained that the Tribunal is entitled to make a decision on the applicant’s review application without taking any further steps to enable the applicant to appear before it where an applicant fails to appear at a hearing and the Tribunal has otherwise complied with its statutory obligations.

8. The applicants’ application for a protection visa lodged on 8 May 2014 provided the email address and mobile number of a migration agent Ms Jie Yu. This migration agent was the authorised recipient for the Applicant in respect of the review application lodged with the Tribunal on 8 April 2015. The review application contained the mobile telephone number of the Applicant in addition to the email and mobile telephone number for the migration agent. In the application for review to the Tribunal, the applicants ticked the box providing for communication by email.

9. The Tribunal in its decision record noted that by letter dated 3 September 2015 addressed to the applicants’ migration agent, the Tribunal advised that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone. The letter invited the applicants to give oral evidence and present arguments at a hearing on 8 October 2015. The letter advised the applicants that if they did not attend the hearing and a postponement was not granted that the Tribunal may make a decision on their case without further notice. The Tribunal noted that the applicants did not respond.

10. The first respondent tendered a bundle of documents identified as Court Book filed on 23 December 2015, and marked Exhibit 1R.  Exhibit 1R contains a copy of the emails sent to the applicants’ migration agent on 3 September attaching the letter of invitation to the applicants to attend the hearing. The Tribunal also noted that it sent the applicants an SMS reminder prior to the scheduled hearing on the mobile number provided. 

11. The Tribunal noted that the applicants did not appear and nor did the Tribunal receive any contact from the migration agent about the failure of the applicants to attend the hearing. The Tribunal found that the applicants were properly notified in respect of the review. Applying s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

12. The solicitor for the first respondent, Mr Keevers, read an affidavit of Ms Charlotte Alexander, affirmed 27 September 2017. Ms Alexander’s affidavit annexed further Department documents in respect of the applicants’ application to the Tribunal. The first document is headed “No Reply to Invitation”. Following the words, “comments”, is a note that “…a reminder SMS was sent for Invitation to Hearing” and identifies the applicant’s mobile number as being the number to which the SMS reminder was sent. 

13. The Applicant said that the reason he did not attend the hearing was because his migration agent had not informed him that there was to be a hearing on 8 October. However, the Applicant also informed the Court that more than two years ago, and before the Tribunal hearing, he had lost his mobile telephone and had changed his number. The Applicant also informed the Court that he, at no stage, took any step to notify either the Department or the migration agent of his new telephone number.

14. Under the statutory regime, the Tribunal was required to correspond with the applicants’ migration agent, as the applicants’ authorised recipient, under s.441G(1) of the Act. Under s.441A(5) of the Act, the applicants were taken to have received the hearing invitation at the end of the day on which it was sent.

15. Section 441A(5) of the Act authorised The Tribunal to communicate with the Applicant by email in inviting the Applicant to a hearing. Accordingly, the applicants were taken to have received that hearing invitation by email on 3 September 2015.

16. The hearing invitation otherwise complied with the requirements of s.425A of the Act, by informing the Applicant of the day, time and place in which the hearing would take place, and providing a period of notice in excess of the prescribed period of 14 days, as prescribed by reg.4.21(4) of the Regulations. The Tribunal noted that it received no response to the hearing invitation, and that the applicants had failed to appear.

17. In the circumstances, the Tribunal was entitled to proceed to exercise its discretion, pursuant to s.426A(1)(a)(i) of the Act, to make a decision on the review without taking any further action to enable the applicants to appear before it.

18. There is nothing in the manner in which the Tribunal decided to exercise its discretion under s.426A of the Act to suggest such a decision was arbitrary, capricious, without common sense or plainly unjust. The Tribunal gave reasons for exercising its discretion, being that the applicants had not responded to the hearing invitation, that neither the Applicant nor the migration agent had made any contact with the Tribunal to seek a postponement or to provide any reason why the applicants could not attend the hearing at the scheduled time. Those reasons provided an evident, transparent and intelligible justification for the Tribunal proceeding to exercise its discretion, pursuant to s.426A of the Act. There is nothing in the Tribunal’s reasons for the exercise of its discretion to suggest that they were other than reasonable and made according to law (see Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38]; Minister for Immigration v Li (2013) 249 CLR 332 at [105] per Gageler J; Minister for Immigration v Stretton [2016] FCAFC 11 at [11] per Allsop CJ; Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [17] per Perry J).

19. The Applicant told the Court that he had lost his mobile phone and had changed his mobile number. That was the only explanation offered by the applicant as to how it was that the Applicant did not attend the hearing. The Applicant conceded that the migration agent may have sent him a copy of the notice or sought to notify him via his old mobile number.

20. However, in circumstances where the Applicant took no steps to notify the Department or the migration agent of his new telephone number, the failure of the Applicant to attend the hearing is not the fault of any person other than the Applicant. It is the Applicant’s responsibility to ensure that the Department has his current contact details at all times and, certainly, where the applicant knowingly engages a migration agent and then fails to provide his current contact details to that agent, any failure of any correspondence addressed to the Applicant’s migration agent to reach the Applicant is unsurprising.

21. In the circumstances, the Tribunal’s decision to proceed to exercise its discretion under s.426A of the Act to proceed to make a decision without taking any further steps to enable the applicants to appear before it, was made according to law.

22. The Tribunal went on to consider the Applicant’s claims. The Tribunal identified the claim with specificity. The Tribunal noted that the issues before it in relation to the Applicant’s claims, were whether there is a real chance that the applicants would be persecuted if they returned to China for reasons of religion; and, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm.

23. The Tribunal accepted that the applicants were nationals of China. However, the Tribunal noted that the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is well-founded, or that it is for the reasons claimed.

24. The Tribunal correctly noted that it was not required to accept uncritically any and all allegations made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451] per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at [596] per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [169]-[70] per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348] per Heerey J).

25. The Tribunal found that there was insufficient detail to satisfy the Tribunal about the veracity of the applicants’ claims. The Tribunal noted that it had questions regarding the Applicant’s arrival in Australia, and that its concerns may undermine the applicants’ credibility.

26. On the material before the Tribunal, it was not satisfied that all the statutory elements for the grounds of protection were made out and, accordingly, affirmed the decision under review.

27. There is nothing on the face of those reasons and conclusions to suggest that they were made otherwise than according to law. The Tribunal’s findings were open to it on the evidence and the material before it, and for the reasons it gave.

Conclusion

1. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision.

2. Accordingly, pursuant to section 474 of the Act, this Court has no power to interfere. The proceedings should be dismissed, with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  23 October 2017