Cim15 v Minister for Immigration and Border Protection
[2018] FCA 490
•6 March 2018
FEDERAL COURT OF AUSTRALIA
CIM15 v Minister for Immigration and Border Protection [2018] FCA 490
Appeal from: CIM15 & Anor v Minister For Immigration & Anor [2017] FCCA 2397 File number: NSD 1831 of 2017 Judge: RANGIAH J Date of judgment: 6 March 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant protection visa – appeal dismissed Legislation: Migration Act1958 (Cth) ss 36, 425A, 426A and 441A
Migration Regulations 1994 (Cth) r 4.21(4)
Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Date of hearing: 6 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellants: The Appellants did not appear Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1831 of 2017 BETWEEN: CIM15
First Appellant
CIN15
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
6 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
RANGIAH J:
This is an appeal from a judgment of the Federal Circuit Court delivered on 28 September 2017. The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse the appellants Protection (Class XA) visas.
The appellants are citizens of China. The first appellant arrived in Australia on 22 January 2014 as the holder of a Tourist (Class FA) Subclass 600 visa, which ceased on 22 April 2014. The first appellant lodged an application for a protection visa on 6 May 2014. The second appellant was included in the application as a member of the first appellant’s family unit. The delegate rejected the application on 11 March 2015.
The appellants then applied to the Tribunal for review of that decision. In 3 September 2015, the Tribunal wrote to the appellants through their migration agent, inviting them to give oral evidence and present arguments at a hearing on 8 October 2015. The Tribunal also sent the appellants an SMS reminder message prior to the scheduled hearing at the telephone number they had provided. The appellants did not appear at the hearing, nor did they contact the Tribunal in response to the letter or the SMS reminder.
The Tribunal was satisfied that the appellants had been properly notified of the hearing date and decided, pursuant to s 426A of the Migration Act1958 (Cth) (the Act), to make a decision on the review without taking any further action to allow or enable the appellants to appear before the Tribunal.
In its decision record, the Tribunal noted that the first appellant had made the following claims.
a. He and his wife worked at the Tuolai Advertising Company and one day in early 2010, a customer named Shifa Li walked into and began talking about Christ, God and “he indoctrinated [them] to love, tolerate and help each other’. Shifa Li also told many Bible stories, which attracted the applicant and he began to read it whenever he had time;
b.He wanted to go to church to meet God father, but there was no church in the village, so he followed Shifa Li to the underground church he organised since mid 2010. Being in church on Sunday became a very important component of the applicant’s life;
c. On 25 December 2010 while celebrating Christmas at Shifa Li’s house, “police broke into [their] gathering at around 1.00 pm. They arrested everyone and held them in detention for 3 days on the charge of illegally gathering. Shifa Li was detained for a week because he was the organizer”;
d. “In the detention center, the police hit [us] and kicked [us] whenever they wanted to, warning [us] that if [we] illegally gather again, they will detain [us] and make ]us] in the prison for the rest of [our] lives”;
e. Following their release they no longer met at Shifa Li’s home, but started to meet in the homes of various followers;
f. On 20 February 2011, the applicant and ten other believers were at his home and the police came to this home and arrested everyone, this time for 15 days. “The police didn’t only hit [us] and kick [us], but also forcibly gave us brain washing education, infused us with materialism and antitheism (sic)” They were forced to say they would never touch the Bible again or risk being beaten to death. Most signed the guarantee required but “Shifa Li would rather die to sign it, so he was not released with [us]. [We ]had never heard from him or met him again. Rumours in [our] village said that he was beaten to death in the detention center;”
g.After this episode, the applicant says he was monitored, harassed and threatened by police. The frequency of the police visits impacted on his business, which had previously been a thriving one;
h.He decided he wanted to “escape from the evil hand of the police in China” so he decided to go overseas;
i. He applied for a student visa for his son and applied for a guardian visa for himself.
(Errors in the original. Citations omitted.)
The Tribunal made the following findings:
15. 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 reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). The applicants did not provide sufficient detail to satisfy the Tribunal (for instance) that:
a.Following discussions with a customer that the applicants began to believe in God and started attending Church services every Sunday.
b. The applicant husband was arrested on 25 December 2010 and then again subsequently on 20 February 2011 and that he was held in detention for 3 days after the first arrest and physically abused and brain washed.
c. He was subsequently monitored, harassed and threatened by police.
16. Further, the Tribunal had questions regarding his arrival in Australia. The applicant claimed he arrived in Australia on a guardian visa in October 2011 together with his son. His movement record from the DIPB indicates he arrived in Australia in January 2014 and no record can be found in relation to his son, based on the name provided in the Protection visa applications. On face value, these issues undermine the applicants’ credibility.
17. Based on the claims they have provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, the Tribunal does not accept the applicant has a well-founded fear of persecution for a Refugees Convention reason, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
(Citations omitted.)
The Tribunal was not satisfied that the appellant satisfied the criterion set out in s 36(2)(a) of the Act. The Tribunal also considered the alternative criterion in s 36(2)(aa) but found that it was not satisfied that it had been met. The Tribunal accordingly affirmed the delegate’s decision.
The appellants then applied for review of the Tribunal’s decision to the Federal Circuit Court. Their grounds were 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 the original.)
The appellants appeared at the hearing before the Federal Circuit Court on 28 September 2017. They made no submissions in support of the first ground. In respect of the second ground, they simply stated that they were here to escape persecution.
The primary judge noted that the application for protection visas provided the email address and mobile number of a migration agent. The migration agent was the authorised recipient for the appellants in respect of the review application. The application for review contained the mobile number for the appellants 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.
Before the primary judge, the first respondent tendered emails sent to the migration agent on 3 September 2015 attaching the letter of invitation to the appellants. The first respondent also provided evidence that the reminder SMS message was sent to the appellant’s mobile number. The first appellant told the Federal Circuit Court that his migration agent had not told him of the hearing on 8 October 2015. The first appellant also said that he had lost his mobile telephone and had changed his number. He accepted that he had not notified the Department of Immigration and Border Protection, or the migration agent of his new telephone number.
The primary judge noted that s 441A(5) of the Act authorised the Tribunal to communicate with the appellants by email to the address provided to the Tribunal. Her Honour found that the hearing invitation complied with s 425A of the Act and r 4.21(4) of the Migration Regulations 1994 (Cth). The primary judge also found that there was nothing in the Tribunal’s reasons to suggest that the discretion it exercised under s 426A of the Act was other than reasonable and made in accordance with the law.
Her Honour went on to consider the Tribunal’s analysis of the appellant’s claims. Her Honour concluded that there was nothing on the face of those reasons and conclusions to suggest that they were made otherwise than in accordance with the law and that the Tribunal’s conclusions were open to it on the evidence and the material before it, and for the reasons it gave.
Her Honour concluded that the Tribunal had complied with its obligations under the statutory regime in the making of its decision, including the conduct of the review, and that it was not affected by jurisdictional error. Her Honour accordingly dismissed the application with costs.
The notice of appeal to this Court contains the following grounds.
1. Bias of the Honour, Judge of Federal Magistrate Court against the Applicant.
2. Error of the Honour, Judge of Federal Magistrate Court, in failing to hear the evidence given by the applicant.
3. Error of the Honour, Judge of the Federal Magistrate Court, in failing to identify the jurisdictional error made by the Second Respondent.
The appellants have not appeared at the hearing of their appeal. Neither have they filed any written submissions. Accordingly, the appeal can be determined on the basis of the grounds set out in the notice of appeal, and the material contained in the appeal book, including the decision record of the Tribunal and the reasons given by the primary judge.
The first ground of appeal asserts that the primary judge was biased against the applicants. The notice of appeal fails to provide any details of the allegation. Bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531. There is nothing before the Court to suggest that the primary judge was actually biased against the appellants, nor that an informed person might apprehend that her Honour might not have brought an impartial mind to bear upon the application. The first ground cannot succeed.
The second ground asserts that the primary judge erred by failing to hear the evidence of the appellants. There is no indication in the material of any application by the appellants to adduce evidence which the primary judge refused, or failed to hear. The ground may be alleging a failure by the primary judge to hear the appellants’ submissions, but her Honour specifically invited them to make submissions, listened to their submissions and addressed them in the reasons. The second ground cannot succeed.
The third ground asserts that the primary judge erred in failing to identify the jurisdictional error made by the Tribunal. Her Honour considered the grounds of the application and the Tribunal’s reasons and concluded that no jurisdictional error was apparent. I respectfully agree with her Honour’s reasons. The third ground cannot succeed.
The appeal must be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 11 April 2018
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