CKO15 v Minister for Immigration

[2016] FCCA 1081

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKO15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1081

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal erred in making adverse credit findings – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: CKO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3118 of 2015

Judgment of: Judge Street

Hearing date: 6 May 2016

Date of Last Submission: 6 May 2016

Delivered at: Sydney

Delivered on: 6 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks
DLA Piper

ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3118 of 2015

CKO15

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 21 October 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of China and their claims were assessed against that country.

2. The applicant was granted a class FA subclass 600 tourist visa on 18 February 2014.  The applicant arrived in Australia on 27 February 2014 using a People’s Republic of China passport issued in her name and was allowed to enter and remain in Australia for a period of three months from the date of her arrival.  The applicant lodged an application for protection on 25 March 2014.  The delegate refused to grant her protection visa on 16 October 2014.

3. On 18 November 2014, the applicant applied for review to the Tribunal.  By a letter dated 11 September 2015, the applicant was invited to attend a hearing on 21 October 2015 and the applicant attended on that day to give evidence and present arguments and was assisted by an interpreter. 

4. The applicant claimed to fear harm by reason of being involved in Falun Gong.  The applicant says that her friend had asked her to bring some Falun Gong material to her sick mother-in-law when she was in Singapore.  The applicant says that she collected some Falun Gong material in Singapore on 25 November 2013.  The applicant says that when she returned to China on 23 December 2013 she brought that material with her and gave it to her friend.  The applicant alleges that on 1 February 2014 her friend told her that a friend of her mother-in-law said that the authorities somehow found out about the materials and that she had brought them into the country.  The applicant claimed to fear persecution because Falun Gong was banned in China.

5. The Tribunal made adverse credit findings in relation to the applicant and found that the applicant had fabricated the story to achieve a means to an end and the Tribunal found that the applicant would not face harm if she returned to China in the foreseeable future. The Tribunal found that it was not satisfied that the applicant met the criteria under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 and affirmed the decision of the delegate.

6. On 21 January 2016, a Registrar of the Court fixed the matter for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed by the applicant. 

7. The application identifies the following grounds:

   1. My best friend, Ms Lili LI asked me to bring back some Falun Gong materials for her sick mother-in-law when she knew I would visit Singapore..

   2. I did it in Singapore in November 20I3. And I gave it to Ms Lili LI when I returned back home.

   3. On 1 Feb. 2014, Lili LI told me that a friend of her mother-in-law said that somehow the authorities found about the material and that I had brought them into China.

   4. I feared that If the authorities found me, I would be arrested and sent to jail. I had to go overseas.

   5. But the Tribunal member didn't believe my true facts and refused my application for protection.

   6. It is obviously error for his decision and made jurisdictional error.

8. At the commencement of the hearing, the Court explained to the applicant that the matter was listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The Court explained that the show cause hearing was to determine whether there was an arguable case of legal error by the Tribunal.  The Court explained that the relevant legal error had to be either an excess of statutory powers by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that if satisfied there is an arguable case that the Tribunal’s decision was affected by relevant legal error, the Court would fix the matter for further hearing.  The Court explained that if not satisfied there was an arguable case of relevant legal error, the applicant’s application would be dismissed.  The Court explained that it proposed to identify the evidence and then hear submissions from the applicant and submissions from the solicitor for the first respondent and then submissions from the applicant.  The applicant confirmed that she understood the nature of the hearing as explained by the Court.

9. The applicant was taken to the submissions of the first respondent which the Court explained identified the first respondent’s argument as to why the application failed to identify any arguable jurisdictional error.  In response to the invitation as to whether the applicant wished to say anything in support of the application or in answer to the submissions, the applicant indicated no.

10. The solicitor for the first respondent submitted that grounds 1 to 4, in substance, were just a repetition of the applicant’s claims and did not identify any arguable jurisdictional error.  The solicitor for the first respondent identified that grounds 5 and 6, in substance, sought to take issue with the adverse finding by the Tribunal in respect of the applicant’s claims.  The solicitor for the first respondent submitted that the adverse findings by the Tribunal were open on the material before the Tribunal and that grounds 5 and 6 were, in substance, an impermissible merits review and failed to disclose any arguable jurisdictional error.  When invited to put submissions in response to what was said by the solicitor for the first respondent or in support of the applicant’s application, the applicant again declined to put any submissions.

11. I accept the first respondent’s submission that grounds 1 to 4 are, in substance, a repetition of the applicant’s fears and did not identify any arguable jurisdictional error.  I also accept the first respondent’s submission that grounds 5 and 6 are, in substance, an impermissible challenge to the adverse findings made by the Tribunal and that those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  I am satisfied that the applicant had a genuine hearing and grounds 5 and 6 failed to identify any arguable jurisdictional error.

12. I am satisfied that the application fails to identify any arguable case. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

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

Associate: 

Date:  16 May 2016