DOK17 v Minister for Immigration

[2018] FCCA 2691

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2691

Catchwords:
MIGRATION – Administrative Appeals Tribunal – non-appearance before the Tribunal – whether there was a reasonable exercise of the Tribunal’s power to proceed to dismiss the application under s 426A of the Act – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – no arguable case of jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss,5J, 36, 426A, 438, 476

Applicant: DOK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2504 of 2017

Judgment of: Judge Street

Hearing date: 20 September 2018

Date of Last Submission: 20 September 2018

Delivered at: Sydney

Delivered on: 20 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 20 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2504 of 2017

DOK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 6 July 2017 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China and arrived in Australia on 22 February 2015, as the holder of a Visitor visa. It was not until 22 May 2015 that the applicant lodged an application for Protection (Class XA) visa.

3. The applicant claims to fear harm in China as a Christian. On 11 April 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

4. The applicant filed an application for review to the Tribunal on 16 May 2016 and provided an email address for the receipt of correspondence in that regard. On 1 May 2017, the Tribunal sent to the applicant’s email address an email identifying that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing on 5 July 2017. The applicant failed to appear on that date.

5. The Tribunal in its reasons identified that the Tribunal sent two SMS reminders to the applicant on 28 June 2017 and 4 July 2017 to the mobile telephone number identified on the review application. Tribunal noted that both messages failed to deliver. The Tribunal found that the email was sent to the address for correspondence identified on the review application.

6. The Tribunal noted that the applicant had failed to appear and decided in the circumstances, pursuant to s 426A of the Act, to proceed to make a decision. The Tribunal noted that there was a certificate had been issued under s 438 of the Act and formed the view that the certificate was invalid. The Tribunal noted that the folios the subject of the certificate appeared to have no relevance to the proceedings and that had the applicant appeared the Tribunal would have raised these matters with the applicant.

7. The Tribunal identified the applicant’s claims that had been advanced before the delegate. Given the absence of the applicant and the Tribunal’s inability to be satisfied that the applicant is a Christian and has suffered harm amounting to persecution, the Tribunal found that it was not satisfied that the applicant faces a real chance of harm amounting to persecution for religious reasons or any other reason. The Tribunal found the applicant does not have a well-founded fear of persecution for one or more of the reasons enumerated in s 5J(1) of the Act should he return to China. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

8. These proceedings were commenced on 7 August 2017. On 16 November 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

9. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

10. From the bar table the applicant maintained that he did not see the email and that the Tribunal did not satisfactorily deal with his claims to fear harm and that he would be harmed if returned and that his father had suffered from persecution and lost his life. The applicant’s reference to not seeing the email was not the subject of any evidence and the affidavit filed in support of the application made no reference to the applicant not receiving the email notification.

11. In any event, whether the applicant observed the receipt of the email on his system or not, the Tribunal complied with the statutory regime by forwarding the email to the address given to the Tribunal by the applicant for the receipt of correspondence. The applicant is taken under the statutory regime to have received the invitation. In circumstances where the Tribunal found the applicant had received the invitation, the decision of the Tribunal to proceed under s 426A of the Act cannot be said to lack an evident and intelligible justification.

12. The applicant’s submissions from the bar table asserting that the Tribunal had failed to consider his claim to fear persecution misunderstand the Tribunal’s reasons. The Tribunal did refer to the applicant’s claims and also referred to the correspondence sent to the applicant informing the applicant that it was unable to be satisfied with the information currently before it and it was for that reason the applicant was invited to attend the hearing. The Tribunal considered further the material and found it was still unsatisfied that the applicant met the criteria under the Act. Those findings were open to the Tribunal for the reasons given by the Tribunal and cannot be said to be unreasonable.

13. The applicant’s submissions from the bar table otherwise in substance invited this Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   Tribunal made Jurisdictional errors in my case.

   1. The Tribunal does not treat my case fairly. Tribunal did not consider that I was persecuted in China due to my religious belief and there is no solid ground to refuse my claims.

   2. Tribunal does not consider that I would be harmed if I returned to China and continue my belief.

   3. There exists procedural error because my claims were ignored. My claims should be properly considered even if I did not attend hearing.

Ground 1

1. In relation to ground 1, the Tribunal complied with its statutory obligations by inviting the applicant to attend a hearing. Further, the applicant suffered no practical injustice or procedural unfairness in the circumstances of the present case where the Tribunal recognised the certificate was invalid and found the documents not to be relevant. Further, there is no practical injustice to the applicant in circumstances where the applicant failed to appear and the Tribunal identified it would otherwise have raised the certificate and documents with the applicant at that hearing had the applicant attended.

2. The proposition in ground 1 that the Tribunal did not consider the applicant’s claim to fear persecution because of his religious belief is erroneous. For the reasons already given, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or was otherwise entitled to complementary protection. Those were findings that were open to the Tribunal for the reasons summarised above. No jurisdictional error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, this is in substance a repetition of the applicant’s claim that there was a failure to consider his fear of persecution. For the reasons already given, it is apparent that the Tribunal did take into account the applicant’s claims. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the proposition that the applicant’s claims were ignored is misconceived for the reasons already given. Further, on the face of the material before the Court, the Tribunal complied with its statutory requirements in the conduct of the review. There is no basis to find that the applicant was the subject of any material denial of procedural fairness.

2. For the reasons given, it is apparent that the Tribunal did consider the applicant’s claims, but was not able to be satisfied in the absence of the applicant having attended the hearing that the applicant had a well-founded fear of persecution or a real risk of significant harm. Those were findings open to the Tribunal for the reasons it gave. No jurisdictional error is made out by ground 3.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 November 2018