DMV16 v Minister for Immgiration

[2017] FCCA 1769

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMV16 v MINISTER FOR IMMGIRATION & ANOR [2017] FCCA 1769

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA visa) – no information was identified enlivening any obligation under s.424A – the adverse findings made by the Tribunal cannot be said to lack an evidence and intelligible justification – no jurisdictional error identified –application dismissed.

Legislation:

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

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: DMV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3230 of 2016

Judgment of: Judge Street

Hearing date: 28 July 2017

Date of Last Submission: 28 July 2017

Delivered at: Sydney

Delivered on: 28 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3230 of 2016

DMV16

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 7 November 2016 affirming a decision of a 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 4 December 2004, having applied for a tourist visa on 26 November 2004 which was granted three days later.

3. The applicant unsuccessfully made an application for protection on 13 January 2005, which was refused on 4 February 2005 and affirmed by a differently constituted Tribunal on 25 May 2005. Consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant made a further application on the grounds of complementary protection, which the delegate refused on 9 April 2015.

The Tribunal’s decision

1. The applicant appeared before the Tribunal on 1 and 4 November 2016 to give evidence and present arguments. The applicant was represented by his registered migration agent. 

2. The applicant claimed to have left China to escape persecution by the authorities and harm by politicians. The applicant claimed to have been beaten, arrested and detained and that his family had been intimidated and threatened.

3. The applicant claimed that in 2002 he was forced to vote for a particular politician and that when he did not do so he was detained by the local police. The applicant alleged he was policed when he promised to vote for a particular person. At the hearing before the Tribunal, the applicant raised a new claim, that he had constantly been threatened by the particular politician in a two-year period from 2002 to 2004 before he left for Australia and that his sons had been constantly threatened.

4. The Tribunal identified the applicant’s background and the nature of the claims the subject of the review. The Tribunal referred to the applicant’s evidence and the applicant’s claims.

5. The Tribunal identified credibility concerns in relation to the applicant and provided logical and rational reasons in support of those credibility concerns. The Tribunal found the applicant not to be a witness of credit. The Tribunal did not accept the applicant’s explanation for the reason why his claims of constant threats to himself and his family were not advanced previously, was a result of the claims not being raised by the delegate in time as the applicant could have raised those details in his application himself.

6. The Tribunal did not accept the applicant’s explanation for lodging the application for protection in 2002 in a false name, containing false claims, and the assertion that he relied on his agent. The Tribunal found that even if the applicant’s claims for not voting for the particular person were not true, his delay in applying for a visa to come to Australia evidences a lack of fear of harm at the time. The Tribunal rejected all the applicant’s claims for protection.

7. The Tribunal was not satisfied there were 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 that the applicant will suffer significant harm. The Tribunal found the applicant failed to meet the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. On 30 March 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

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

   1. The Tribunal failed to consider all of the applicant’s case. The applicant used a fraudulent passport to enter into as he could not get a visa by his own passport. Furthermore, the applicant used a fraudulent passport so as to help the applicant to flee from China easily.

   2. The Tribunal failed to consider the applicant’s claim of the deprivation of the applicant’s voting right in the protection visa application form and serious harm to his fundamental right.

   3. The Tribunal failed to particularise pursuant to s424A when the Tribunal had regard to the circumstance of the applicant entering Australia and his fraudulent passport under the name of Zhong Wen Deng.

   4. The Tribunal erred in taking into account of irrelevant consideration. The Tribunal asked a question of when the applicant wanted to remain in Australia that is irrelevant to his application.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the counsel 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. 

The Applicant’s submissions from the bar table

1. From the bar table, the applicant complained about the interference with his right to vote. This claim concerning the applicant being required to vote for a particular politician was raised before the Tribunal and considered by the Tribunal and the subject of an adverse finding.  Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, on the face of the Tribunal’s reasons, the Tribunal addressed the whole of the applicant’s claims that were advanced before the Tribunal. The Tribunal made adverse findings dispositive of the applicant’s claims that were open on the material before the Tribunal. Those adverse findings cannot be said to lack an evident and intelligible justification.

2. It was open the Tribunal to take into account the applicant’s use of a false name in relation to the 2002 application. There was no claim advanced by the applicant that he feared any harm in China by use of the false passport. No such claim fairly arose on the material before the Tribunal. No jurisdictional error was made out by ground 1. 

Ground 2

1. In relation to ground 2, the applicant’s claim concerning his fear arising from being forced to vote was the subject of consideration and an adverse determination by the Tribunal. No jurisdictional error was made out by ground 2. 

Ground 3

1. In relation to ground 3, no information was identified enlivening any obligation under s.424A of the Migration Act. The use of the false name was a matter clearly raised by the Tribunal with the applicant. I accept counsel for the first respondent’s submission that the nature of that information would in any event fall within s.424A(2)(b) of the Migration Act. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, no irrelevant consideration was identified that the Tribunal took into account. Asking the applicant questions about his desire to remain in Australia was open to the Tribunal and would be relevant to the applicant’s credit. Ground 4 fails to make out any jurisdictional error. 

S.438 Certificates

1. The first respondent has drawn the Court’s attention to the existence of two certificates issued in the present case on 13 April 2015. It is common ground that the certificates, or the documents the subjects of the certificates, were not disclosed to the applicant.

2. The documents the subject of the certificates have been admitted into evidence. The documents, on their face, do not identify any relevant matter that was taken into account in the determination of the applicant’s claims by the Tribunal. The documents on their face were not relevant to the adverse determination of the applicant’s claims by the Tribunal. 

3. On the face of the Tribunal’s decision, the documents do not appear to have been taken into account by the Tribunal, and in the circumstances of the present case, the failure to disclose the certificates and the documents the subject of the certificates gave rise to no denial of procedural fairness or any practical injustice to the applicant. I am satisfied that the non-disclosure of the certificates and the documents the subject of the certificates do not give rise to any jurisdictional error in the present case.

4. Further, I am satisfied that the non-disclosure of that information in the present case had no possible impact on the outcome of the review, and in those circumstances, even if there was found to be a denial of procedure fairness, relief should be refused on discretionary grounds.

Conclusion

1. The application fails to disclose any jurisdictional error. The application is dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 September 2017