DRE16 v Minister for Immigration and Anor (No.2)

[2017] FCCA 2005

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRE16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2005

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the adverse findings by the Tribunal were the subject of reasoning that was rational and logical – the adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Cases cited:

MZAFZ v Minister for Immigration and Citizenship (2016) 243 FCR 1

Applicant: DRE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3388 of 2016

Judgment of: Judge Street

Hearing date: 22 August 2017

Date of Last Submission: 22 August 2017

Delivered at: Sydney

Delivered on: 22 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr K Kelly

Jackson & Associates

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3388 of 2016

DRE16

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 made on 4 November 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 Japan, and his claims were assessed against that country. The applicant first arrived in Australia on 6 February 2007 and departed on 11 February 2007. The applicant again arrived in Australia on 3 July 2008 and departed on 21 August 2008. The applicant next arrived in Australia on 14 February 2011 and it was not until 20 October 2014 that the applicant made an application for protection. 

3. The applicant claimed to fear harm by reason of his Korean ethnicity, having a Korean mother and a Japanese father, and by reason of his inability to read and write Japanese.  The applicant also claimed that he would suffer harm because he had never lived in Japan and would not have the support of his family and because many people of Korean ethnicity have been mistreated or persecuted in Japan.

4. On 5 August 2015, a delegate found the applicant failed to meet the criteria under the Refugees Convention and/or for complementary protection and refused to grant the applicant a protection visa.

The Tribunal’s decision

1. On 8 July 2016, the applicant applied to the Tribunal for review of the delegate’s decision. A certificate under s.438(1)(a) of the Migration Act was provided to the Tribunal dated 13 July 2016 in respect of particular folios on the grounds that the disclosure of the information would be contrary to the public interest because the folios contain information relating to an internal working document and business affairs.

2. By letter dated 22 August 2016, the applicant was invited to attend a hearing before the Tribunal on 28 October 2016. The applicant appeared on that date to give evidence and present arguments. 

3. The Tribunal identified the applicant’s background, including having been born in Singapore with a South Korean mother and a Japanese father, and found the applicant to be a Japanese citizen. The Tribunal found the applicant speaks, reads and writes English, Russian and Mandarin, and speaks Japanese.

4. The Tribunal noted that the applicant had undertaken a Bachelor of Science in Kazakhstan until July 2010, when he returned to Singapore. The Tribunal noted that the applicant had previously travelled to Malaysia, Singapore and the USA, as well as Japan. 

5. The Tribunal identified the applicant’s migration background and set out the applicant’s claims and fears. The Tribunal took into account the length of time between when the applicant entered Australia and when he lodged the visa application.  The Tribunal found the applicant did not seek protection sooner because he did not and does not actually fear suffering serious or significant harm in Japan. 

6. The Tribunal was not satisfied there is a real chance the applicant would suffer significant economic hardship that would threaten his capacity to subsist or that there is a real chance he would suffer a denial of a capacity to earn a livelihood of any kind if he is removed to Japan now or in the reasonably foreseeable future. The Tribunal was not satisfied there is a real chance the applicant would suffer serious harm, having regard to the provisions of the Migration Act.

7. The Tribunal was not satisfied there is a real chance the applicant would face serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future if he is removed to Japan. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Refugees Convention reason. 

8. The Tribunal identified that the applicant had visited his father’s family in Japan a number of times, albeit briefly. The Tribunal was prepared to give the applicant the benefit of the doubt and accepted that he has very little family support in Japan. The Tribunal accepted that he may suffer some hardship as he tries to find accommodation, earn an income and familiarise himself with the culture and the written language. However, the Tribunal was not satisfied that these hardships, even taken into account cumulatively, will result in a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Migration Act.

9. The Tribunal was not satisfied that the applicant is a person with respect to whom Australia has protection obligations under the Refugees Convention, and found the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.

10. The Tribunal found that the applicant was not a person with respect to whom Australia had protection obligations under the ground of complementary protection, and found the applicant failed to meet the criteria under s.36(2)(aa) of the Migration Act.

Before this Court

1. On 13 April 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. At the commencement of the hearing today, Mr Kelly solicitor on behalf of the applicant, sought an adjournment and for the reasons earlier given, that application for an adjournment was refused. 

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

   1. The AAT failed to consider the information provided in the specific context of my personal circumstances, that is being a Korean descent having to return to Japan as a resident in that country.

   2. The AA T failed to give clue weight to the information provided by me and a result failed to reach the only correct conclusion in this context - that is I will or likely suffer economic hardship and as a result a protection visa should be granted.

   3. The AAT placed undue weight on my multi-lingua abilities. education and qualifications as well as interpreting the available country information from the lens of a person growing up from and educated in Western Countries.

   4. The Tribunal accepted that I will face difficulties as a Japanese citizen who has limited familiarity with Japanese culture and who is functionally illiterate. The Tribunal further accepted that I have limited family support in Japan but concluded that it is not satisfied that I will have no family support and in reliance on that the Tribunal determined that the Humanitarian ground of the Protection Visa is not satisfied.

   5. Following on from 4 above. the Tribunal erred in the sense that I am not required to establish and the Tribunal is not required to satisfy itself that I have No family support before a Protection Visa can be granted on humanitarian grounds.

   6. I am hoping that if my case is fully heard by the court, the court will see a compelling logic to overturn the decision by the Tribunal.

   7. For the above reasons, I file this appeal and pray that the court will grant my appeal.

Consideration

Ground 1

1. In relation to ground 1, it is clear that the Tribunal took into account the applicant’s Korean ethnicity in relation to the applicant’s claims and made adverse findings dispositive of those claims that were open on the material before the Tribunal. Those adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.

Grounds 2 and 3

1. In relation to grounds 2 and 3, the weight to be given to evidence was a matter for the Tribunal. Grounds 2 and 3 fail to make out any jurisdictional error. 

Ground 4

1. Ground 4 in substance, seeks to take issue with the adverse findings made by the Tribunal. This Court does not have the power to revisit the merits. The adverse findings were open for the reasons given by the Tribunal which were rational and logical. Ground 4 fails to make out any jurisdictional error. 

Ground 5

1. Ground 5 misconceives the reasoning of the Tribunal. The Tribunal in fact gave the applicant the benefit of the doubt in relation to having limited family support, but found that these hardships, even considered cumulatively, would not give rise to significant harm under s.36(2A) of the Migration Act. Accordingly, ground 5 fails to make out any jurisdictional error.

Ground 6 

1. In relation to ground 6, the adverse findings by the Tribunal were the subject of reasoning that was rational and logical and based on the material before the Tribunal. No jurisdictional error is made out by ground 6. 

Ground 7

1. Ground 7 in substance invites this Court to engage in an impermissible merits review in respect of which this, Court has no power. Ground 7 fails to make out any jurisdictional error. 

s.438 Certificate

1. Consistent with the first respondent’s duties as a model litigant, the first respondent has drawn the Court’s attention to the issue of the certificate in the present case and the material, the subject of the certificate has been tendered. 

2. The first respondent accepts that this Court is bound by the decision in MZAFZ v Minister for Immigration and Citizenship (2016) 243 FCR 1 to find that the certificate under s.438 was invalid. The Court has looked at the material to the subject of the certificate. That material was not referred to and the Court finds, has not been relied upon by the Tribunal in the conduct of the review.

3. The material on its face, is plainly irrelevant to the subject matter of the review and did not give rise to any practical injustice to the applicant. The Court is satisfied that the failure to disclose the existence of the certificate and the documents the subject of the certificate could not possibly have affected the outcome of the review. No jurisdictional error is made out by reason of the failure to disclose the existence of the certificate, or the documents the subject of the certificate. 

4. Further, this is a case where the Court is satisfied that there could not possibly have been any impact on the applicant in the conduct of the review by reason of the failure to disclose the certificate and the documents the subject of the certificate, and accordingly, if any relevant legal error were found, relief would be refused on discretionary grounds. 

Conclusions

1. For these reasons, the application is dismissed. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 September 2017