CRB17 v Minister for Immigration

[2017] FCCA 2857

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRB17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2857

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2)(a), 426A, 441A(5), 441C(5)

Migration Regulations 1994 (Cth), reg.4.35D

Cases cited:

AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144

MZALO v Minister for Immigration and Border Protection [2016] FCA 1339

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZVFW & Anor v Minister for Immigration and Border Protection [2017] FCAFC 33

First Applicant: CRB17

Second Applicant: CRC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 565 of 2017

Judgment of: Judge Jarrett

Hearing date: 17 November 2017

Date of Last Submission: 17 November 2017

Delivered at: Brisbane

Delivered on: 17 November 2017

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 14 June, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 565 of 2017

CRB17

First Applicant

CRC17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

1. By their application filed on 14 June, 2017 the applicants seek judicial review of a decision of the Administrative Appeals Tribunal dated 19 May, 2017 to affirm a decision of a delegate of the first respondent  not to grant them Protection (Class XA) visas.

2. The first applicant was the primary visa applicant.  The second applicant is his wife.  She applied for the visa as a member of the first applicant’s family unit, but she did not raise her own claims for protection.

3. The applicants raise three grounds of review in their application.  The first respondent opposes the application and says that none of the grounds identify jurisdictional error in the Tribunal’s decision.  The second respondent has entered a submitting appearance.

4. Both applicants appeared before me in person at the hearing. They had the assistance of an interpreter. When I sought to have them clarify their grounds of review neither understood them and it seemed to become apparent that this application has been prepared and filed by somebody else, described by them as a friend, without their input to any great degree. When I asked the first applicant whether he had given instructions for the grounds of review that appear in the application or whether the person who prepared the document had made it up for themselves his answer was more consistent with the latter proposition than the former.

5. Both applicants are citizens of the People’s Republic of China who arrived in Australia on 23 August, 2015 as the holders of visitor visas. On 18 November, 2015 they made an application for Protection (Class XA) visas.  Only the first applicant advanced claims for protection.

6. In his statement accompanying his visa application, the first applicant claimed to fear harm due to his Christian beliefs. The first applicant specifically claimed that:

   a)In January, 2014 he was diagnosed with having three broken vertebrae and osteoporosis and was hospitalised and had ineffective treatment. In March 2014, a colleague introduced him to Christianity, and every time he prayed, his pain would ease. He also participated in an underground Christian church.

   b)In September, 2014 the first applicant was regularly involved in underground church meetings and commenced holding meetings at his house from the end of 2014. He did not participate in “public church” because this church was controlled by the Chinese Communist Party.

   c)On 23 March, 2015 the Chinese Communist Party began a wave of mass arrests of underground Christians. At 1:00am on this day, four or five plainclothes policemen raided his house and dragged him into a police car. The next day, the police took him to a detention centre where he began a hunger strike lasting for 14 days. He says that guards tortured him by forcing him to remain in certain postures for long hours and hit him. On 20 May, 2015 he was fined and released.

7. On 21 June, 2016 a delegate of the first respondent refused to grant the first applicant the protection visa for which he has applied. The delegate did not accept that the first applicant was a Christian, attended underground Churches, held prayer meetings at his house or had been arrested and imprisoned.

8. On 15 July, 2016 the first applicant sought review of that decision by the Administrative Appeals Tribunal.

9. On 21 March, 2017 the Tribunal invited the applicants to appear at a hearing to give evidence and present arguments relating to the issues arising in the case. The applicants failed to appear at that hearing scheduled for 16 May, 2017.

10. On 19 May, 2017 the Tribunal affirmed the delegate’s decision. The Tribunal determined to make a decision on the review without taking any further action to enable the applicants to appear before it. It was entitled to do that in the circumstances: s.426A of the Migration Act 1958 (Cth).

11. The Tribunal, according to its reasons, found that:

    a)The applicants had been advised that the Tribunal had considered the material before it and was unable to make a favourable decision on that information alone;

    b)The applicants had been invited to appear before it to give evidence and present arguments at a hearing, and if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to enable the applicants to appear before it;

    c)The relevant correspondence from the Tribunal was sent to the email address provided on the application for review;

    d)The applicants failed to appear at the scheduled hearing. The Tribunal received no response to the invitation to the hearing, nor did it receive any communication from the applicants seeking a postponement of the hearing or providing reasons for non-attendance; and

    e)The applicants were properly invited to the hearing in accordance with s.441A(5) of the Act, by emailing the hearing invitation to the applicants’ authorised recipient.

12. The Tribunal noted that had the applicants attended the hearing it would have asked them for further details about their claims and would have asked them to provide further information and details. There were a number of matters identified by the Tribunal in respect of which it would have sought further information from the applicants. The Tribunal noted a number of inconsistencies in the applicants’ evidence to the delegate about which the Tribunal had many questions.

13. It follows from the fact that the Tribunal invited the applicants to attend a hearing and that it was unable to make a favourable decision of their application without further information from the applicants. The Tribunal’s reasons reveal that it had concerns as to the reliability of the first applicant’s claims.  The concerns are identified in its reasons.

14. The Tribunal was ultimately not satisfied that the first applicant was Christian or that the first applicant was arrested, detained, tortured or had experienced any harm in China.  The Tribunal was also not satisfied that the first applicant had any involvement in Christianity in China or Australia.

15. The Tribunal was not satisfied therefore that the applicants had a well-founded fear of persecution as required by s.5J of the Migration Act. The Tribunal was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Migration Act.

16. The Tribunal considered the question of complimentary protection. It referred to its earlier findings and recorded that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, that there was a real risk that he would suffer significant harm

17. Under the heading “Grounds of application” in this application for review, the applicants refer to an attached statement. That statement reads as follows:

    1. The Tribunal did not accord the Applicant procedural fairness in that it did not give the Applicant a sufficient opportunity to give evidence, or make submissions, about what turned out to be the determinative issues arising in relation to the review.

    Particulars

    The Tribunal failed to put to the Applicant the following issues, which were crucial to its decision:

    That it did not believe that the Applicant was a loyal Christian.

    That it did not totally understand my statement on the Tribunal.

    That the AAT staff’s attitude is so aggressive.

    That the AAT interpreter translated not clear sometimes.

    1. Although I have submitted so many materials, AAT still did not believe I am a loyal Christian. For example, I stated that I preferred to live in Australia with my wife and child. If I return to China, I will be harmed, because I know the other Christians has been harmed by Chinese government. However, maybe not at the beginning when I come back to China. Because of this, AAT doubt that I was not a loyal Christian, which was completely without reason. I am telling the truth.

    2. The AAT staff is so aggressive, which caused that I could not answer the questions freely. For example, I refused the AAT staff to contact my wife, because my wife is busy in taking care of my baby. The officer agreed finally, but aggressive. Even worse, AAT doubt what I said.

    3. The interpreter in AAT translated not clearly, and I could not understand her sometimes. In addition, in the AAT refuse letter I found some mistakes. For example, I came from ZHEJIANG Province but ZHEJIAN Province in the letter. I could not believe their work attitude.

18. Despite the orders made on 8 August, 2017 permitting the applicants to file an amended application setting out any amended grounds of review with particulars by 26 September, 2017 nothing has been filed.  At the hearing before me, the second applicant appeared in the first instance without the first applicant. She told me that he was not present because he was suffering from back pain. I indicated to the second applicant that the first applicant ought to be here and that in the event that he did not attend the hearing it might be that his application would be dismissed. She also told me that their “solicitor” had filed some documents when I asked her whether there was an outline of submissions, but she could not produce a copy of any documents that have been provided by the solicitor.  There is no solicitor on the record for the applicants.  There never has been.

19. The hearing was adjourned for a couple of hours to enable the first applicant to attend. The first applicant attended at the adjourned time and he explained that the documents in this case were prepared by a “friend”. The second applicant added that they had paid some money to this person.  The first applicant said that he did not really understand what the case was about.

20. Referring then, to the application for review and the grounds contained within it, the first contends that the first applicant was not given a sufficient opportunity to give evidence, or make submissions, about the determinative issues in the review.  However, that is simply not so. 

21. On 19 July, 2016 the first applicant was invited by the Tribunal to provide any material or written arguments that the applicants might wish to put before the Tribunal as soon as possible.

22. The dispositive issues in the review before the Tribunal were the same as those that arose on the delegate’s decision.  The first applicant was entitled to assume that was so: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35].

23. The Tribunal was under no obligation to put the applicants on notice of the issues on the review where those issues did not go beyond the issues that arose out of the delegate’s decision.  By reason of the delegate’s decision, the applicants were on notice that the credibility of the first applicants’ claims was the determinative issue for the delegate and therefore would be the issue on the review from the delegate’s decision.  The delegate did not accept that the applicant was a Christian, attended underground Churches, held prayer meetings at his house or had been arrested and imprisoned.  Those matters were plainly issues on the review.

24. The Tribunal determined that it could not make a decision that was favourable to the applicants on the material that was before it.  Consistent with the obligation on the Tribunal pursuant to s.425(1) of the Act (as read with s.425(2)), the Tribunal invited the applicants to appear before it. The invitation to appear included the following information:

    If you are not able to attend the hearing you should advise us as soon as possible.  Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

    If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.  A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

    If you bring an original document to the hearing to submit as evidence, you should also bring a copy of the document.  If you do not bring a copy, the original may not be returned until the end of the review.

    The enclosed leaflet ‘Information about hearings - MR Division’ contains important information about hearings, dismissals and your rights.

    Please read and complete the enclosed ‘Response to hearing invitation - MR Division’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a qualified translator.

    Please return the completed form to us within 7 days after receiving this letter.

25. The first respondent submits that no breach of s.425 has occurred because the Tribunal has discharged the obligations cast upon it by Div 4 of Part 7 of the Migration Act. I agree.

26. The other matters relied upon by the applicants cannot be made out on the material before me.  They seem to be predicated on the basis that a hearing attended by the first applicant did in fact occur with the Tribunal.  However, there was no hearing and so it is very difficult to understand how the matters complained of by the applicants can be established.  The applicants themselves were unable to explain these matters to me.

27. Further, the applicants were unable to explain what it was that they meant by the matters set out in paragraphs numbered 2 and 3 in the statement attached to their application for review. There was no questioning of any person and no “AAT interpreter” because there was no hearing at which the applicants attended.  They were unable to identify the occasion on which it was said that the “AAT staff is so aggressive.” Moreover, the applicants were unable to explain the statement “For example, I came from ZHEJIANG Province but ZHEJIAN Province in the letter,” in their grounds of review when there was no reference at all to that Province in any of the material in this case.

28. Having regard to those matters, I am not satisfied that the Tribunal’s decision in this matter is affected by jurisdictional error.  I have otherwise considered the Tribunal’s decision as set out in its decision record.  But there is nothing that suggests that the Tribunal’s decisions could be impugned for jurisdictional error.

29. The first respondent has quite properly raised one matter with me that requires some discussion. The first respondent submits that the Tribunal’s decision to exercise its discretion to proceed to determine the matter pursuant to s.426A(1A)(a) of the Migration Act cannot be said to be unreasonable in a legal sense.

30. Section 426A applies in circumstances where an applicant is invited to appear before the Tribunal pursuant to s.425 of the Act and fails to appear. In the present matter, the Tribunal’s hearing invitation was sent to the applicants on 21 March, 2017 via email to their authorised recipient. The applicants were therefore deemed to have received the hearing invitation at the end of the day on 21 March, 2017 pursuant to s.441C(5) of the Act.

31. By inviting the applicant to a hearing on 16 May, 2017 at least 14 days after the applicants are deemed to have received the hearing invitation, the Tribunal complied with the prescribed period in reg.4.35D of the Migration Regulations 1994 (Cth). The Tribunal received no response to the hearing invitation and the applicants failed to appear. In those circumstances, the Tribunal’s power to proceed pursuant to s.426A(1A)(a) of the Act was engaged. The Tribunal was authorised, but not required, to make a decision on the review without taking any further action to enable the applicants to appear before it.

32. The first respondent has drawn my attention to the decision of North ACJ in AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144 and the more recent decision of the Full Court of the Federal Court in SZVFW & Anor v Minister for Immigration and Border Protection [2017] FCAFC 33.

33. The first respondent submits that the present matter can be distinguished from AZAFB and SZVFW.  I agree. 

34. Here, neither the applicants nor their authorised recipient made any contact with the Tribunal after the Tribunal sent the first invitation to provide submissions and other material in June, 2016 or after the hearing invitation was sent in March, 2017.  Unlike AZAFB and SZVFW there was nothing which might have indicated to the Tribunal that the applicants intended to pursue their application.   They had made no submissions in support of the first applicant’s claims and had not responded in any way to the hearing invitation.  Moreover, there is no evidence before the Court of any explanation having been provided to the Tribunal by the applicants for, or of, any request for an adjournment.

35. I accept the first respondent’s submission that this is not a case where “elementary common sense demanded that the Tribunal at least attempt to phone the [applicant] on the mobile number it had in its records.” Indeed, as the first respondent points out, it is not incumbent on the Tribunal to telephone every applicant who does not appear at a hearing under s.426A of the Act. The observations of Mortimer J in MZALO v Minister for Immigration and Border Protection [2016] FCA 1339 at [24] are apposite:

    This is not a case where there had been a pattern of close contact with the Tribunal such that it was reasonable to expect the Tribunal to take the short and simple step of making a phone call to the appellant to see why she had not attended the hearing. This was not a case where the appellant’s previous behaviour in relation to her review suggested a close and vital interest in its conduct, and suggested that failure to attend a Tribunal hearing was not the result of a conscious decision and was, instead, out of character: cf. my decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393.

1. The Tribunal explained why it decided to proceed in the absence of the applicants:

   4.  [CRB17] and [CRC17] lodged a joint online application for review of the delegate’s decision in relation to the Subclass 866 visa with the Tribunal on 15 July 2016. A copy of the delegate’s decision and decision review was provided to the Tribunal by [CRB17] and [CRC17] when making their application.

   5.  In 21 March 2017, the Tribunal wrote to [CRB17] and [CRC17] advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited them to give oral evidence and present arguments at a hearing to be held on 16 May 2017. The letter advised that if they did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable them to appear before the Tribunal. The letter was sent to [CRB17] and [CRC17] via the email address they provided in their application for review.

   6.  The Tribunal received no response to the invitation letter. [CRB17] and [CRC17] did not appear before the Tribunal on the day and at the time and place they were scheduled to appear. [CRB17] and [CRC17] did not contact the Tribunal to seek a postponement of the hearing, or to provide any reason as to why they could not attend at the scheduled time.

   7.  The letter advising of the hearing date was sent to [CRB17] and [CRC17] via email to the email address of the authorised recipient provided by [CRB17] and [CRC17] in connection with the review. The Tribunal is satisfied that [CRB17] and [CRC17] were properly invited to the hearing in accordance with s.441A(5) of the Act and the email was not returned undelivered.

   8.  The Tribunal is satisfied that [CRB17] and [CRC17] were aware that their recipient’s email address, as nominated by them on making their application, would be used by the Tribunal for communicating with them, and that they had been advised of the necessity of advising the Tribunal of any change of address. In this regard the Tribunal notes the information provided on making an online application, as was done by [CRB17] and [CRC17] included the following:

   “By lodging an application for review online you agree that the AA T may communicate with you by email. If you do not wish the AA T to communicate with you by email or if you do not wish to or are unable to lodge an application online, you can lodge an application in person, by post or by fax. Application forms are available here.”

   and that the  information sent to [CRB17] and [CRC17]  acknowledging  receipt of their application, included the following:

   “How will we correspond with you?

   9. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review, without taking any further action to enable [CRB17] and [CRC17] to appear before the Tribunal.”

2. Having regard to the Tribunal’s reasons as expressed in those paragraphs, its decision to proceed in the absence of the applicants cannot be said to be legally unreasonable.

3. There is no jurisdictional error demonstrated by the grounds of review, or otherwise apparent in the Tribunal’s decision. Accordingly, the application should be dismissed with costs.  While the applicants oppose an order for costs, costs should follow the event. There are no special circumstances here to warrant not applying the usual rule.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 November, 2017.

Date: 22 November 2017

CORRECTIONS

1. Reasons for Judgment: Page 10 – 11, Paragraph 36 quote delete the first and second applicant’s names and insert their pseudonyms.