CKZ18 v Minister for Home Affairs
[2018] FCCA 3649
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKZ18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3649 |
| Catchwords: MIGRATION – Criticisms of the conduct of the hearing by the tribunal and of its decision making process without foundation – tribunal properly carried out its functions and accommodated the needs of the applicants – no demonstrated jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.420, 424, 430 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 |
| First Applicant: | CKZ18 |
| Second Applicant: | CLA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 467 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 31 October 2018 |
| Date of Last Submission: | 31 October 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Applicants: | Self-represented |
| Solicitors for the First Respondent: | Clayton Utz |
| Second Respondent: | Submitting appearance |
THE COURT ORDERS ON A FINAL BASIS THAT:
The Application for review filed 11 May 2018 be dismissed.
The Applicants pay the costs of the First Respondent fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANES |
BRG 467 of 2018
| CKZ18 |
First Applicant
| CLA18 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
ADMINISTRATIVE APPEAL TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicants are Chinese citizens. They arrived in Australia on 15 October 2013 on sub-class 457 visas. The applicants applied for protection visas on 4 August 2017. On 14 September 2017 the applicants were invited to attend an interview before a delegate to the Minister. The applicants did not attend their scheduled interview with the delegate. The delegate refused to grant to the applicants the protection visas sought by them, such refusal having been made on 28 September 2017. On 16 October 2017 the applicants filed an application for review of the delegate’s decision.
The applicants were invited on 19 November 2018 and 7 March 2018 to attend an interview before the Tribunal. The location of the Tribunal hearing was changed at the request of the applicants. The applicants appeared in person before the Tribunal at the re-scheduled hearing on 22 March 2018. At that time, they were assisted by an interpreter, as was recorded in [9] of the reasons of the Tribunal. The Tribunal recorded that the hearing was conducted with the assistance of an interpreter conversant in the Mandarin and English languages.
The Tribunal affirmed the delegate’s decision in its decision handed down on 12 April 2018. The applicants filed an application for judicial review of the Tribunal’s decision on 11 May 2018. On 20 June 2018 orders were made by Registrar Buckingham permitting the applicants to file and serve any further amended application or affidavit material by 8 August 2018. No such documentation has been filed. It was also ordered that 28 days prior to the hearing, the applicants were to file and serve written submissions in support of their application for review. No such written submissions were filed.
The application for review filed on behalf of each of the applicants seeks orders for the quashing of the decision of the Tribunal as well as for the issuance of a writ of mandamus directed to the Tribunal requiring it to determine the applicants’ application according to law. The grounds of the application were as set out in an attachment to the application. Those grounds are as follows:
AAT did not research to my case.
AAT did not believe that I scared to go back to China because of persecution. To the opposite, AAT though that if I return to China, I would not suffer persecution by Chinese Government. However, AAT did not give any persuasive reason about my case, which is not reasonable.
The staff’s attitude is not professional.
AAT’s interpreter’s translation is not clear in my case. I could not understand English, so I could not communicate with the officials. I have tried my express myself, but the officer did not understand my meaning. AAT did not explain the problems in my statement clearly, it caused that I did not have a fair chance to prove my true situation of being persecuted. It is not reasonable that AAT doubt my credit because AAT just added a few clauses on the basis of the statement, then AAT gave me the final decision, it was very irresponsible.
AAT is not focused on my case, and did decision so rush.
AAT should do the further understanding and adjudication to my case in according with my application. However, AAT just did make decision for my case through the refusal letter from DIBP. It is unfair to me. Even worse, I did not get the opportunity to explain myself.
AAT’s refuse letter is not clear.
AAT did the decision so quick, and so many mistakes in the statement. Through this we can see their working attitude. They just wanted to finish the case quickly, and no right working attitude, which was not fair to my applucation.
As to ground 1 of the application, the Tribunal is under no general obligation to make inquiries or to conduct research (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]). Neither was the Tribunal bound to make out the applicants’ case on behalf of the applicants (see Commissioner of Taxation v Glennan (1990) 90 FCR 538 at 558 per Hill, Sackville and Hely JJ). Although the Tribunal may seek information (for example, pursuant to section 424 of the Migration Act 1958 (Cth) (“the Act”)), the Tribunal’s essential function was to review decisions the subject of valid applications made to the Tribunal, and to arrive at a decision based upon the information before it.
Only in rare and exceptional circumstances will a failure by the Tribunal to make inquiries constitute a constructive failure to exercise jurisdiction (see BFC15 v Minister for Immigration and Border Protection [2016] FCA 735 at [20]). In this case, no rare and exceptional circumstances arose. The Tribunal did not fail to make an obvious inquiry concerning a critical fact, the existence of which could have been easily ascertained, or in respect of a matter which constituted a sufficient link to the outcome so as to constitute a failure to review (see Minister for Immigration and Citizenship v SZIAI (2004) 78 ALJR 992 at [25]).
The Tribunal was not satisfied that the applicants’ claims, and the evidence before it, together met the criteria for the grant of the visa the subject of the application. In those circumstances the Tribunal will not generally be under any obligation to make further inquiries (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992). The Tribunal could not be said to have failed to discharge any obligation to conduct the hearing appropriately. In any event, no further research or inquiry was required because there was nothing in the review material which gave cause for the necessity of making any such research or inquiry.
It could not be said that the Tribunal did not correctly identify the issues before the Tribunal. Its reasons were clear and concise and intelligible. The Tribunal assisted the applicants in each respect required of it, including the rescheduling of the hearing at the request of the applicants, as well as the engagement on behalf of the applicants of an interpreter to assist them during the course of the hearing. The Tribunal found on the evidence before it that the applicants had fabricated their claims so as to achieve a positive immigration outcome, and rejected the applicants’ creditworthiness.
In its reasons, it did not err in arriving at such conclusions which were open to it. The court is otherwise not permitted to undertake a merits review of issues before the Tribunal, and ground 1 in part would require the court to undertake that impermissible task. There is no merit in ground 1. On the question of the provision of proper reasons, it is contended on behalf of the applicants that the Tribunal failed to provide proper reasons by making mistakes and adding a few clauses, and by not being clear. This ground is without merit on a reading of the reasons of the Tribunal. Such reasons were clear and concise.
The applicant has failed to particularise any error the subject of such general broad contentions. In any event, the Tribunal provided clear reasons consistent with its obligations pursuant to the provisions of section 430(1) of the Act. The Tribunal clearly set out its reasons why it affirmed the delegate’s decision to refuse to grant the visas. The Tribunal set out its findings which it considered material to the making of its decision.
Those findings included that there were significant inconsistencies between the oral evidence given to the Tribunal by the first and second applicants, that explanations provided by the second applicant for the inconsistencies did not satisfactorily address the extent and breadth of the discrepancies and the variations in the applicants’ evidence, and that the applicant’s delay of some four years was not attributable to the applicants’ lack of understanding of how the Australian visa system operated, or otherwise because of the assertion that the applicants had held valid visas in the past as was raised by them.
The Tribunal referred to the evidence on which its findings of fact were based being the applicants’ protection visa applications, review applications, oral evidence and the delegate’s reasons, and it otherwise properly recorded the day and time the statement was made. The Tribunal addressed the applicants’ particular circumstances in its thorough analysis of the applicants’ claims, which analysis can be seen from [3] – [32] of its reasons. Even a zealous overview of the Tribunal’s reasons would not disclose error on the part of the Tribunal.
The Tribunal otherwise conducted a de novo review of the merits of the review application based upon the factual matrix before it. The Tribunal appropriately dealt with the factual matrix and made reasons or findings based upon those facts. The Tribunal set out how it was not satisfied on the evidence that the applicants met the relevant criteria. The applicants were found to be unreliable witnesses who gave inconsistent evidence, who delayed filing their application for a protection visa for four years, and who demonstrated an ability to shift and tailor evidence to suit their purpose.
The Tribunal properly made findings to the effect that the applicants were not owed protection obligations. As to the assertion that the Tribunal was “unprofessional” without a proper work ethic, there is no merit to that ground. Every proper procedure was complied with by the Tribunal both prior to, during, and after the hearing process. The adverse credibility findings made by the Tribunal were not illogical or irrational, and a reasonable decision maker could have arrived at such findings based upon the material before the Tribunal. The Tribunal had the benefit of observing the applicants when they appeared before it.
It was asserted on behalf of the applicants that the interpretation and translation conducted during the course of the hearing was “not clear”. In that regard, the Tribunal engaged an interpreter of sufficient skill to perform the function of an interpreter, namely, a level 3 NAATI accredited interpreter proficient in Mandarin. The interpreter enabled the Tribunal hearing to proceed in a regular manner in circumstances where the applicants were able to freely and without difficulty communicate with the Tribunal. No complaint was made to the Tribunal during the course of the hearing as to any inadequacy on the part of the interpreter.
The applicants did not seek to supplement their oral evidence by providing the Tribunal with any further written statement, or by requesting a further hearing. It was a matter for the applicants to make out their own case (see Abebe v Commonwealth (1999) 197 CLR 510 at [187]). In all respects, the applicants had a “real and meaningful” opportunity to give evidence and present arguments to the Tribunal in support of their application. No jurisdictional error has been made out by the applicants in relation to their complaint about the interpreter.
As to the complaint that the handing down of the decision of the Tribunal was rushed, there was no obligation on the part of the Tribunal to delay handing down a decision which in all the circumstances was reasonable, coherent, clear and concise. The Tribunal complied with its hearing obligations pursuant to the provisions of section 420 of the Act. The lack of delay in the handing down of the Tribunal’s decision was meritorious, rather than dilatory. No ground for jurisdictional review has been demonstrated in relation to that complaint.
Any similar complaint in relation to the terms of the reasons as a whole, or otherwise in respect of any communication of the refusal to grant the application for the visa, is without merit. The notification of the decision letter found at page 7 of the court book appropriately addresses all of the matters needed to be conveyed to the applicants, particularly in the circumstances where further information was provided to the applicants together with a copy of the decision record, extracts and extracts from the Migration Act. No jurisdictional error has been demonstrated in respect of the application for review, and accordingly the application is dismissed.
It has been submitted on behalf the applicants that a reason why they should not be ordered to pay costs is because they have no money. That consideration should have been taken into account by them before they made the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 10 December 2018
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