DEP16 v Minister for Immigration

[2017] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1298

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal complied with its obligations under s.424B of the Migration Act – adverse findings made were open – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424B, 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: DEP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2930 of 2016

Judgment of: Judge Street

Hearing date: 16 June 2017

Date of Last Submission: 16 June 2017

Delivered at: Sydney

Delivered on: 16 June 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms K Garaty

HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2930 of 2016

DEP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 October 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia on 12 November 2010 as the holder of an Offshore Schools Sector (Web) (TU 571) visa. The applicant claimed that he stopped studying in July 2011. The applicant became an unlawful non-citizen on 15 March 2013. It was not until 11 June 2014 that the applicant applied for protection.

3. On 24 April 2015, the delegate refused to grant the applicant a protection visa and made adverse credibility findings in relation to the applicant’s claims and found the applicant failed to meet the criteria under the Migration Act.

The Tribunal’s decision

1. The applicant applied for review on 7 May 2015. By letter dated 5 September 2016, the applicant was invited to attend a hearing on 26 September 2016.  The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the applicant’s background in the application for a visa and set out the relevant law. The applicant claimed to fear harm on the basis of his Christian beliefs held by himself and his family and their practice of those beliefs by way of attending a house church. The applicant claimed that his parents had been targeted by the Chinese authorities and his family’s business was constantly interrupted, disturbed and watched by those authorities.

Refugee convention criteria assessment

1. The Tribunal was not satisfied on the basis of the applicant’s evidence, that the applicant was a credible witness or a witness of truth. The Tribunal referred to a number of instances where the applicant had provided brief, vague, unconvincing and inconsistent evidence in his responses to questions concerning his family’s practice of Christianity and attendance at a house church.

2. The Tribunal made reference to the applicant having arrived in Australia in 2010 and not applying for protection until 2014 and found that the applicant’s explanation for the delay did not diminish the Tribunal’s concerns and contributed to the overall impression that the applicant is not a credible witness.

3. The Tribunal found the applicant was not a witness of truth for the reasons expressed and found that there was no real risk of serious or significant harm of any kind if the applicant returned to China. The Tribunal found that the applicant does not have a well-founded fear of persecution. The Tribunal found the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act.

Complementary protection criteria assessment

1. The Tribunal having considered the applicant’s claims individually and cumulatively was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will suffer significant harm. Accordingly, the Tribunal affirmed the decision under review.

Before this Court

1. On 2 March 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. On that occasion, the Registrar fixed the matter today for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. No such documents were filed by the applicant.

2. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing to determine whether the applicant had an arguable case. The Court explained it was considering whether the applicant had an arguable case that the Tribunal’s decision was affected by a relevant legal error. The Court explained that a relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

3. The Court explained that in summary this meant the Court was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was unlawful or a reasonably arguable case that the Tribunal’s decision was unfair. The Court explained to the applicant if the Court was satisfied that the applicant had a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the matter would be stood over and fixed for hearing on another occasion. The Court explained that if the Court was not satisfied the Tribunal’s decision was affected by an argument of relevant legal error, the application would be dismissed.

4. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. The grounds in the application are as follows:-

   1. The Tribunal erred in making its findings without supporting evidence.

   2. The Tribunal failed to disclose the country information where the tribunal has taken into account.

   3. The Tribunal failed to invite the applicant to give additional information under s424B.

Applicant’s submissions from the bar table

1. From the bar table, the applicant submitted that the Department had failed to take into account the laws in China and what had occurred to his family. The application for review to this Court is an application for review in respect of the Tribunal’s decision not that of the delegate. So far as the applicant’s claim in respect of his family is concerned, the Tribunal identified the applicant’s allegations and found that the applicant was not a witness of truth.

2. The Tribunal provided rational and cogent reasons in support of the adverse credibility findings, including the applicant’s delay in applying for protection. Those adverse credibility findings cannot be said to lack an evident and intelligent justification. The applicant took issue with the adverse findings in relation to his credit. It was a matter for the Tribunal to determine the applicant’s credit and this Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, the Tribunal’s reasons reflect an orthodox approach to the review and the findings adverse to the applicant were open on the material before the Tribunal. No arguable jurisdictional error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, this is a case where the Tribunal made adverse credibility findings in determining the applicant’s claims and the review was not determined on the basis of country information. In any event, under s.424A(3)(a) of the Migration Act, the Tribunal was under no obligation to disclose country information to the applicant. No arguable jurisdictional error is disclosed by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal invited the applicant to attend a hearing consistent with the obligations under s.424B of the Migration Act and complied with its statutory obligations. There was no further statutory obligation requiring the Tribunal to give the applicant a further opportunity to give further evidence.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and complied with the obligations of procedural fairness in the conduct of the review.  No arguable jurisdictional error is disclosed by ground 3 of the application.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 July 2017