FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRQ16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2876 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant them Protection visas – applicants need a 22 month extension of time under s.477(2) of the Migration Act 1958 (Cth) to make their application to this Court – no reasonable or adequate explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.438, 476, 477 Federal Circuit Court Rules 2001 (Cth) |
| First Applicant: | CRQ16 |
| Second Applicant: | CRR16 |
| Third Applicant: | CRS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2554 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 3 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr P. Bodisco of Counsel |
| Solicitors for the Applicants: | Weighbridge Lawyers |
| Counsel for the First Respondent: | Ms K. Evans |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicants to file and rely upon the Further Amended Application dated 3 October 2018.
Order the First and Second Applicants to pay the First Respondent’s costs of and incidental to the filing of the Further Amended Application, including any costs of the preparation for the hearing on the basis of the earlier Amended Application.
The Further Amended Application filed in Court on 3 October 2018 seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $8,000, that sum being inclusive of the earlier costs order that the First and Second Applicants pay the First Respondent’s costs thrown away by the filing of the Further Amended Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2554 of 2016
| CRQ16 |
First Applicant
| CRR16 |
Second Applicant
| CRS16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Adjournment Application
In this matter, which has been set down for hearing for some considerable time, Mr Bodisco of Counsel, who regularly appears in this Court, has appeared for the Applicants on short notice. That has caused him some difficulty and he has seen a refinement of the argument that he wants to put on behalf of his clients from what was in the Amended…
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- Case
- [2018] FCCA 2876
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Tribunal erred in making adverse credibility findings against the applicant and, consequently, whether the Minister was satisfied that the applicant met the criteria for a Protection visa. Specifically, the court had to consider the requirements of the Refugee Criterion, which necessitates a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and the Complementary Protection Criterion, which requires substantial grounds for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
Dowdy J reasoned that a significant factor in the Tribunal's adverse credibility findings was the omission from the applicant's initial statutory declaration of a claim that he had been raised in Islam by a Muslim uncle, practised Islam with his uncle and friends, and was subsequently threatened and attacked by them due to his conversion to Christianity, necessitating his flight from Indonesia. The court noted that this omission was material to the Tribunal's assessment of the applicant's credibility. The court referred to the established criteria for a Protection visa, as outlined in previous judgments, which require the Minister to be satisfied of either the Refugee Criterion or the Complementary Protection Criterion.
The court ultimately dismissed the application for judicial review, upholding the Tribunal's adverse credibility findings and the subsequent refusal of the Protection visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In his statutory declaration declared on 9 July 2013 (statutory declaration), the First Applicant claimed, in substance, as follows: a)he was of Chinese ethnicity and born a Buddhist, but converted to Christianity in the year 2000 and was baptised in May 2005 whilst in Japan; b)his wife is also of Chinese ethnicity and was born a Buddhist and converted to Christianity and baptised at the same time as himself; c)his parents continue to practise the Buddhist faith; d)his usual occupation is as an international student; e)he was currently studying for a Diploma in Tourism at Academies Australia in Sydney; f)he currently attended a Christian Pentecostal Church at Ultimo in Sydney on a regular basis, where the pastor was the Pastor Agus Gunawan; g)his family is Buddhist; h)he fears harm in Indonesia from Muslims and local authorities; and i)he wishes to preach the gospel, but could not do so to the Muslim community in Indonesia and he and his wife could not effectively practise and adhere to Christianity in Indonesia. I note that since his initial arrival in Australia, the First Applicant has returned to Indonesia twice to visit his elderly mother, namely, in 2011 and 2012. Consistent with his claim to be an international student, the First Applicant stated in his Protection visa application form that he spoke, read and wrote the English language to an average standard. It is important to note that there was no claim in his statutory declaration that he had been raised by a Muslim uncle and practised Islam with this uncle and his friends and was threatened and then attacked by his uncle and other Muslims in Indonesia because of his conversion to Christianity, and that he had to flee Indonesia to go to the United States, Japan and then Australia because of this threatened harm. This claim was made later and its omission from the statutory declaration was a factor in the decision of the Tribunal coming to and making adverse credibility findings, as further dealt with below. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; .....