CTN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 237

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CTN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 237

File number(s):	SYG 1967 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	14 October 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) Visa – oral application for an adjournment refused – whether the Tribunal failed to carry out its statutory duty – where the Tribunal made adverse credibility findings – whether those credibility findings were logical, rational and open to the Tribunal – whether the Tribunal failed to give the applicant a real and meaningful opportunity to present evidence and arguments to the Tribunal – where the applicant’s submissions invited impermissible merits review – no jurisdictional error made out – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 414, 424, 424AA, 424A, 425, 425A, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	33
Date of hearing:	14 October 2021
Place:	Sydney
Solicitor for the applicant:	In person
Solicitor for the first respondent:	Ms K Nash, Sparke Helmore

ORDERS

SYG 1967 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CTN17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	14 OCTOBER 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is refused.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 May 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Class XA) Visa (“the Visa”).

   Background

2. The applicant is a citizen of Indonesia and her claims were assessed against that country.

3. On 21 August 2012, the applicant arrived in Australia as the holder of a visitor visa. That visa was in effect until 21 November 2012. The applicant then remained in Australia as an unlawful non‑citizen for two years.

4. On 4 August 2014, the applicant lodged an application for the Visa, which was received on 12 August 2014. The applicant claimed to fear harm from her husband in Indonesia. 

5. The delegate made adverse credibility findings in relation to the applicant’s claims. On 24 June 2015, the delegate found that the applicant did not meet the criteria for the grant of the Visa. 

6. On 24 June 2015, the applicant applied to the Tribunal for review. By a letter dated 7 March 2017, the Tribunal invited the applicant to attend a hearing on 12 April 2017. The applicant attended on that date to give evidence and to present arguments. The applicant also had the benefit of an interpreter at that hearing.

7. Following the hearing, the Tribunal sent the applicant a letter dated 18 April 2017, pursuant to s 424A of the Act, inviting the applicant to comment on information that her husband had supported her application for the tourist visa, which the Tribunal pointed out was inconsistent with the applicant’s evidence that her husband did not know she was coming to Australia. The applicant was invited to respond by 12 May 2017, and was informed that she could seek additional time to comment or respond. The applicant did not seek additional time and responded on 2 May 2017. The Tribunal took into account that response in its decision.

   The Tribunal’s Decision

8. In its decision, dated 19 May 2017, the Tribunal identified the background to the review application. The Tribunal summarised the applicant’s claims. The Tribunal identified what occurred at the hearing.

9. The Tribunal identified raising with the applicant why it took two years to apply for the Visa. The Tribunal identified inconsistencies in relation to the applicant’s claims, in respect of the husband bringing back “bad girls” to their home.

10. The Tribunal put it to the applicant that it had been many years since she last saw her husband. The Tribunal gave the applicant the opportunity to explain why her husband would be interested in harming her.

11. The Tribunal referred to the invitation to comment letter, dated 18 April 2017, and set out the applicant’s response, which included the assertion that the letter of the support from her husband may not be her husband’s signature.

12. The Tribunal identified the relevant law.

13. The Tribunal found the applicant not to be a credible witness. The Tribunal identified having tried to explore with the applicant the problems with her husband, and that her evidence in relation to when she was living with her husband changed. The Tribunal found that the applicant was making up her evidence as she went along.  The Tribunal did not accept the applicant’s evidence that she had separated from her husband, and referred to her inconsistent evidence.

14. The Tribunal also took into account the applicant’s delay in applying for protection. The Tribunal did not accept the applicant’s explanation for that delay. The Tribunal did not accept the applicant’s evidence that her husband did not know that she was coming to Australia. The Tribunal did not accept the applicant’s evidence that she had separated from her husband, or that he had assaulted or threatened her.

15. The Tribunal did not accept that the applicant had suffered any previous harm in Indonesia. The Tribunal did not accept that the applicant would suffer serious harm from her husband, or anyone else, in the reasonably foreseeable future. The Tribunal found that the applicant did not have a well-founded fear of persecution.

16. The Tribunal found that the applicant failed to meet the criteria under ss 36(2)(a) and 36(2)(aa) of the Act. Consequently, the Tribunal affirmed the decision of the delegate under review.

    Before the Court

17. These proceedings were commenced on 22 June 2017. On 21 September 2017, a Registrar made orders, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

18. On 29 June 2021, a Registrar made orders fixing the matter for hearing on 19 August 2021.  On 13 August 2021, this Court vacated that date and fixed the matter for hearing today. 

19. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed that she understood the explanation given by the Court.

20. The applicant complained that she would be harmed by her husband if she returned to Indonesia. The Tribunal did not accept the applicant’s claims to fear harm from her husband, and made adverse credibility findings that were open for the reasons given by the Tribunal. Those reasons included the delay in the applicant seeking the Visa and remaining in Australia as an unlawful non-citizen, the inconsistences in the applicant’s evidence, and the inconsistency in relation to her husband being aware of her coming to Australia, given his letter of support for her visitor visa. The adverse credibility findings were logical, rational and reasonable. The applicant’s disagreement with those adverse findings does not identify any jurisdictional error.

21. The applicant suggested that she was not given an opportunity to present arguments to the Tribunal. The applicant has adduced no evidence to support that submission. That submission is also inconsistent with the invitation letter, giving the applicant an opportunity to give evidence and present arguments, sent on 7 March 2017, and inviting the applicant to attend the hearing on 12 April 2017. The letter complied with s 425 of the Act. The applicant completed a response to hearing and attended the hearing before the Tribunal to give evidence and present arguments. The applicant also had the benefit of an interpreter.

22. It is apparent from the Tribunal’s reasons that the Tribunal raised with the applicant the credibility concerns, and identified the applicant’s response to those issues. On the face of the evidence before the Court, the applicant had a real and meaningful hearing before the Tribunal.

23. The applicant was also given a further opportunity to comment in response to the s 424A of the Act letter, dated 18 April 2017. The applicant did reply to that invitation on 2 May 2017, and did not seek any further opportunity to respond or comment. There is no basis to find that the applicant did not have a real and meaningful opportunity to present evidence and arguments to the Tribunal. The applicant’s submissions otherwise invited impermissible merits review, identifying that she wanted to remain in Australia.

    Oral Application for an Adjournment

24. The applicant sought an adjournment. The applicant referred to her inability to be able to find a lawyer, or to be able to afford one.

25. The applicant also referred to her recent receipt of information from the first respondent. The applicant referred to having read the submissions and documents that were sent yesterday. Evidence was admitted and marked as Exhibits B and C, reflecting the service of the court book and the submissions on the applicant, consistent with the orders of the Court. That means the documents were not sent yesterday. The applicant’s belated reading of the material earlier sent to her is not a proper basis for an adjournment.

26. Given the date of the commencement of the proceedings and the orders that have been made, the Court is satisfied that the applicant has had ample opportunity to put on any relevant evidence, if she sought to do so. Further, given the hearing dates in the matter, the applicant has had ample opportunity to prepare herself to present arguments as to why the Tribunal’s decision is the subject of error, or in support of the grounds in the application. 

27. The adjournment was opposed by the first respondent. The Court is satisfied that the applicant had a real and meaningful opportunity to present arguments before this Court and had the proper opportunity to put on any relevant evidence, if she was able to do so. The Court is not satisfied that there would be any utility in granting an adjournment. The Court is not satisfied that an adjournment is likely to result in the applicant being legally represented. 

28. Taking into account the history of the matter, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the Court made an order refusing the oral application for an adjournment.

    The Grounds

29. The grounds in the application are as follows:

    Ground 1

    1.The Administrative Appeals Tribunal failed to carry out its statutory duty.

    Ground 2

    2.The Tribunal failed to give the applicant a meaningful opportunity to present arguments in support of her claims.

    Ground 3

    3.The Tribunal file to advise the applicant that she could seek additional time to comment on or respond to the information as required by S424 of Migration Act.

    Ground 1

30. In relation to Ground 1, without particulars this Ground is incapable of identifying any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its review obligation under s 414 of the Act. No statutory provision has been identified that the Tribunal failed to comply with. No jurisdictional error is made out by Ground 1.

    Ground 2

31. In relation to Ground 2, the Tribunal’s reasons identify that the applicant had a real and genuine opportunity to give evidence and present arguments. The Tribunal’s reasons reflect raising with the applicant, at the hearing, the issues of concern by the Tribunal with the applicant, and the Tribunal identified the explanations given and why the Tribunal rejected the same. There is no basis to find that the applicant had anything other than a real and meaningful hearing before the Tribunal. No jurisdictional error is made out by Ground 2.

    Ground 3

32. In relation to Ground 3, the Tribunal sent the applicant a letter pursuant to s 424A of the Act, which complied with the statutory obligations in respect of the adverse information concerning the applicant’s husband’s support for her visitor visa to come to Australia. No other information has been identified enlivening any obligation under s 424A of the Act. There is no basis to find that the Tribunal has failed to comply with ss 424A, 424AA or 424 of the Act. The applicant was given an opportunity to respond to the adverse information and did so on 2 May 2017. No jurisdictional error is made out by Ground 3.

33. As the application fails to make out any jurisdictional error, the application must be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 October 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 9 November 2021