Dbi19 v Minister for Immigration
[2020] FCCA 3118
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBI19 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3118 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa application – whether the Tribunal erred in its decision – whether jurisdictional error is made out – no jurisdictional error made out – the application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 425 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 |
| First Applicant: | DBI19 |
| Second Applicant: | DBK19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 54 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 2 November 2020 |
| Date of Last Submission: | 2 November 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms Crawford - Clayton Utz |
ORDERS
The application is dismissed.
The applicants’ to jointly and severally pay the first respondent’s costs fixed in the amount of $5602.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 54 of 2019
| DBI19 |
First Applicant
| DBK19 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants’, who are husband and wife, first arrived in Australia on 20 December 2015 on Visitor (Subclass 600) visas. On 15 January 2016, the applicants’ lodged with the Department of Immigration and Border Protection (“the Department”), applications for protection visas under
s 65 of the Migration Act 1958 (Cth) (“the Act”).
On 22 December 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicants’ their visas. The applicants’ sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 16 July 2019, the Tribunal affirmed the delegate’s decision, not to grant the applicants’ protection visas.
The applicants now seek judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal decision
After setting out the background and history of the matter, together with the criteria that the Tribunal was required to be satisfied of in order to grant a protection visa, at paragraph 19 of its decision, the Tribunal was satisfied as to the identity and Chinese nationality of the applicants’.
At paragraph 21 of its decision, the Tribunal notes that, as set out in their applications, the first applicant confirmed that he still has family in China, being his daughter and his mother.
At paragraph 24 of its decision, the Tribunal noted the first applicant’s claims of a dispute with a construction company. The applicant claimed that he got a Court order in his favour, but that the company did not pay him what was due. The first applicant complained to a government official. The first applicant was told that there was nothing they could do and that he would just have to wait for his money.
The first applicant and his wife decided to visit Australia as tourists. When the applicants’ came to Australia, they found this to be a beautiful place, people are polite, a real freedom and democracy country which is totally different from China.
At paragraph 25 onwards of its decision, the Tribunal considered, in some considerable detail, the dispute that the first applicant had with the construction company. At paragraph 27 of its decision, the Tribunal noted that there were some discrepancies in the first applicant’s versions of events.
It was only in the Departmental interview in 2016 that the first applicant made a new claim, not contained in his initial application to the Department, that he was afraid of “thugs” associated with the construction company. The first applicant claimed that the company told people in China that they wanted him (the first applicant) to disappear, if they ever see him around. As the first applicant had made them lose face, he had to pay back the amount and say I am sorry. The first applicant stated that he needed to stay in Australia to stay away from these people.
At paragraph 32 of its decision, the Tribunal found, on the evidence before it, that the first applicant did have a contract with the construction company and that there was a dispute about the payment of the balance of monies owing to him. However, having raised the issue of the dispute with the local government and seeking their assistance, the outstanding monies were paid to him and there was now no dispute between the first applicant and the company.
The Tribunal was not satisfied about the credibility of the first applicant’s claims regarding the risk of harm from alleged “thugs” or risks associated with him prosecuting a lawsuit against the company. The Tribunal was not convinced that the first applicant received any threats from the construction company or its associates.
As the Tribunal was satisfied that the first applicant received assistance from the county government to recover outstanding monies from the construction company, the Tribunal was not satisfied that the applicants’ face a real chance of serious harm either now or in the reasonably foreseeable future if they returned to China.
Nor was the Tribunal satisfied that the first applicant’s claim that he was detained by police for one day for causing trouble, was a matter, even if it was credible, which the Tribunal found it was not, that would base a well-founded fear of persecution if he was to return to China.
The Tribunal was not satisfied that the first applicant had a well-founded fear of persecution and that he met the criteria either for protection under s 36(2)(a) or s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the first applicant a protection visa. As the second applicant’s claims were dependent upon the first applicant’s claim succeeding, her claim also failed.
Grounds of Judicial Review
The application for judicial review was filed with the Court on 9 August 2019. In the section headed Grounds of Application the following appears:
“please see my affidavit”.
The first applicant swore an affidavit dated 08 August 2019 in the following terms verbatim:
“I have received AAT report dated 17th July.
My feeling is that I was too nerves at the AAT interview, whatever I said on that day were a bit different from what actually happened.
I would like to have a copy of the audio record at the AAT interview, so I can listen to it and double check, see whether any mistakes in interpreting or because of my panicking.”
The Applicants’ Submissions
The applicants’ appeared before the Court unrepresented. The applicants’ were assisted by an Interpreter. Notwithstanding Court orders, no written submissions or further evidence was supplied to the Court by the applicants’ in support of the application.
At the commencement of the hearing, the Court ensured that the applicants’ were in possession of the relevant Court Book and that a copy of the first respondent’s written submissions had been interpreted to them. The Court also ensured that the applicants’ had access to a pen and paper to take any notes they might wish to, during the course of the hearing.
The Court carefully explained the fact that it was undertaking judicial review, not merits review, and that it was limited to considering whether or not there was any legal error in the Tribunal’s decision. If legal error was found, all the Court could do, is quash the decision and remit it back to the Tribunal for further consideration. The Court also explained the process that would be undertaken in relation to the conduct of the hearing.
The first applicant spoke on behalf of himself and his wife. The first applicant told the Court that he “hopes to continue to work in Australia. I like Australia.”
Following the first respondent’s oral submissions, the first applicant was asked if he had anything further he wished to say to the Court on behalf of himself and his wife. The first applicant’s answer was: “My only hope is to stay in Australia”.
The First Respondent’s Submissions
In written submissions, the first respondent notes that the applicants’ have failed to articulate any purported error on the part of the Tribunal.
Insofar as the applicants’ claim that the standard of interpretation led to a failure to provide a hearing in accordance with s 425 of the Act, not every error or inadequacy in interpretation can be said to have resulted in an appellant being effectively denied the opportunity which s 425 guarantees as questions of fact and degree are relevant: (see SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [47]).
In order for an applicant to succeed in an application that they were denied a fair hearing, they must show one of the following: (see Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (“Appellant P119/2002”) at [17])
the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or
errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant;
In the current case, no evidence has been provided to demonstrate that the applicants’ were effectively prevented from giving evidence, or that the errors made by the Interpreter at the hearing were material to the conclusions of the Tribunal adverse to the applicants’. Further, the first respondent notes that the interpreter was a National Accreditation Authority for Translators and Interpreters (“NAATI”) accredited Level 3 Interpreter (see CB14, p153), which can be taken to be a factor weighing in favour of adequate interpretation.
Consideration
The Court is required to conduct judicial review, not merits review. Therefore, an application before the Court can only succeed if there is a jurisdictional error contained within the Tribunal’s decision.
The applicants’ grounds do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicants’ first complaint, such as it is, merely invites merits review which the Court cannot undertake: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]).
On the basis of the evidence and material put forward, the Court is not satisfied that that the first applicant’s mental state deprived him of a meaningful opportunity to participate in in the hearing as mandated by
s 425 of the Act: (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
It is well-established that the Tribunal is not required to accept uncritically any and all claims made by the applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). The Court is satisfied that the Tribunal’s findings were open to it on the material contained in the evidence before it and to the reasons it gave, including its adverse credit findings. There is nothing illogical, irrational or legally unreasonable in the Tribunal’s reasoning or the conclusions it reached, including adverse conclusions as to the credit of the first applicant.
In relation to the claim that the standard of interpretation was inadequate, there must be evidence before the Court that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was either prevented from giving evidence to the Tribunal, or that errors were made in interpretation at the hearing were material to the conclusion of the Tribunal and adverse to the applicant: (see Appellant P119/2002 at [16]-[17]). No material has been put to the Court which would support such a conclusion. The Court notes that the interpreter was appropriately NAATI accredited. This favours a finding that the standard of interpretation was more than adequate for the task required. No jurisdictional error is made out.
No procedural error is established. The applicants’ were invited pursuant to s 425 of the Act to attend a hearing, give evidence and present argument. It is not suggested that the applicants’ were denied the opportunity to put their case to the Tribunal.
As the applicants’ were unrepresented, the Court carefully perused the Tribunal’s decision but was unable to find any jurisdictional error that was not articulated by the applicants’.
The claim by the first applicant cannot succeed. The second applicant must also fail as her claim is dependent upon the first applicant’s claim succeeding.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 19 November 2020
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