CWM19 v Minister for Immigration

[2020] FCCA 1848

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWM19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1848

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether there is jurisdictional error in the Tribunal’s decision – no jurisdictional error is made out – the application is dismissed.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR

559

Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR

259

Applicant: CWM19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1869 of 2019

Judgment of: Judge Humphreys

Hearing date: 7 July 2020

Date of Last Submission: 7 July 2020

Delivered at: Parramatta

Delivered on: 7 July 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr Pipolo, Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1869 of 2019

CWM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of China. The applicant arrived in Australia on 14 December 2015 on a Visitor (Subclass 600) visa. The applicant applied for a protection visa on 2 March 16.This was deemed an invalid application. The applicant submitted a further application on 6 April 2016. In a decision dated 16 December 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa.

2. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). Although invited to attend a hearing on 15 July 2019, the applicant declined the invitation. The Tribunal determined to consider the matter on the basis on the material before it. In a decision made on the same day as the hearing, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.

3. The applicant now seeks judicial review of the Tribunal’s decision.

The Administrative Appeals Tribunal’s Decision

1. Given that the applicant did not appear at the hearing, the Tribunal decision is relatively short. After setting out the relevant law, the Tribunal noted the applicant’s claims at paragraph 14 of its decision. These were that the applicant was notified that local authorities in Hebei, notified him that they proposed to demolish his home, in order to build new roads.

2. The applicant refused to accept the decision and the offer to relocate the applicant and his family to another part of the city. The applicant claims he was arrested, viscously attacked and his life threatened by government people. The applicant said the people are still looking for him and he will be killed if he returns.

3. The Court notes that at paragraph 186 of the Court book, the applicant responded to an ‘Invitation to Attend a Hearing’ letter sent to him. The applicant ticked the box indicating that he did not propose to attend the hearing.

4. The Tribunal noted that it was for the applicant to satisfy it that his claims have been made out. The Tribunal is not required to accept, uncritically any and all allegations made by the applicant (see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (“Guo”) at [596]).

5. Given that the Tribunal had no opportunity to question the applicant about his claims, the Tribunal was unable to be satisfied that his claims were made out. Accordingly, the Tribunal affirmed the decision under review.

Grounds of Appeal

1. In an application filed on 24 July 2019, the applicant pleads the following grounds, verbatim:

   1. I cannot return to China, because the men hired by the government will harm me again.

   2. Australia can protect me, and I am safe here, I will face no harm.

   3. In China I will face more harm. I cannot be safe if I am in China and Australia must protect me.

The Applicant’s Submissions

1. The applicant appeared in Court unrepresented. The applicant was assisted by an interpreter. Despite Court orders, no written submissions were filed by the applicant, in support of the application. Prior to the hearing commencing, the Court ensured the applicant was in possession of a copy of the Court book and the first respondent’s written submissions. The Court ensured the applicant had the opportunity to having those submissions interpreted to him, prior to the commencement of the hearing. The applicant was also provided with pen and paper to make any notes, if wished to so.

2. The applicant was advised that if the Court determined to deliver an oral decision, he could request a copy of written reasons through the Sydney Registry.

3. When the applicant was asked if he wished to make any oral submissions, he stated that he can remember attending the city once, in relation to his visa application. The applicant stated he had done everything that was asked of him, each time he received a letter. The applicant said he knew little of the procedure regarding the granting of a visa. Apart from that, the applicant had nothing to put to the Court.

4. The applicant was again asked if he wished to make any oral submissions after the first respondent had addressed the Court. The applicant responded that he could not remember the fact he filled in the response to the invitation letter contained at paragraph 186 of the Court book. The applicant had nothing further to say.

The First Respondent’s Submissions

1. First, the first respondent noted that the applicant had not attended either his protection visa interview or his Tribunal hearing. Further, other than the application for review, the applicant had not filed any further documents in support of his claim.

2. The three grounds set out in the application are not proper grounds of review and essentially re-state the applicant’s original claims. As such, the grounds invite merits review of the Tribunal decision, which this Court cannot do (see Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at [272])

3. There is no jurisdictional error on the part of the Tribunal where it affirms a decision, due to a lack of information due to the applicant’s non-attendance at the Tribunal (see Guo at [596]). As the Tribunal was not satisfied on the material before it as to the applicant’s claims, the Tribunal had no choice but to affirm the decision of the delegate.

Consideration

1. The role of the Court is to undertake judicial review not merits review. Each of the three purported grounds of appeal, does not allege jurisdictional error. Rather, as submitted by the first respondent, they simply invite merits review of the Tribunal’s decision.

2. The onus of proof lies on the applicant to satisfy a decision-maker, that they meet the criteria for being a refugee (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). If the decision-maker is not so satisfied, the applicant must be refused a protection visa.

3. In circumstances where the applicant failed to attend the protection visa interview and the Tribunal hearing, the Tribunal was left with bare assertions by the applicant, with no supporting material. In these circumstances, it is unsurprising that the Tribunal affirmed the decision under review.

4. Given that the applicant is unrepresented, the Court has perused the Tribunal decision, but cannot detect any jurisdictional error that has not been articulated by the applicant. No jurisdictional error is apparent.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 7 July 2020