DZAEH v Minister for Immigration
[2015] FCCA 1155
•4 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZAEH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1155 |
| Catchwords: MIGRATION – Application for Protection (Class XA) visa – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 36(2)(aa) |
| Applicant: | DZAEH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 27 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 4 March 2015 |
| Date of Last Submission: | 4 March 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 4 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the First Respondent: | Ms Newman |
| Solicitors for the Respondent: | Clayton Utz |
| The Second Respondent enters a submitting appearance |
ORDERS
The application filed on 17 July 2014 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.00.
| FEDERAL CIRCUIT COURT AT BRISBANE |
DNG 27 of 2014
| DZAEH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
ex tempore
This is an application for judicial review for a decision of a refugee review tribunal that was made on 13 June, 2014. That decision affirmed a decision of a delegate of the first respondent not to grant to the applicant a Protection (Class XA) visa.
In this application, the applicant claims that the tribunal’s decision is infected by jurisdictional error in two ways. To understand how she says that the tribunal’s decision is infected by jurisdictional error, it is necessary to understand something of the background to the proceedings and the tribunal’s decision itself.
The applicant is a citizen of the People’s Republic of China. She arrived in Australia in May, 2003 on a student visa. She was granted several other student visas until, in December, 2007 she was refused the grant of a further visa. She sought a review of that decision but it was affirmed in 2009.
It seems, from the material that I have, that since about 2013, the applicant has been in immigration detention. She went into detention in November, 2013 and applied for a protection visa in December, 2013. The usual processes were followed. The applicant was interviewed by a delegate of the first respondent for the purposes of assessing her claim to the visa. That interview took place in January, 2014 and, at the end of that month, the delegate refused the protection visa application.
The delegate necessarily concluded that the applicant did not meet the criteria specified in s.36(2)(a) for the grant of a visa or the complimentary protection provisions in s.36(2)(aa) of the Migration Act1958 for the grant of a protection visa.
In February, 2014 the applicant commenced an application for review of that decision by a refugee review tribunal. In March, 2014 the applicant was invited to appear and give evidence and present arguments to the tribunal. The tribunal extended that invitation to her, as it was obliged to do by the Act, because the tribunal was unable to be satisfied on the material before it that the decision under review should not be affirmed.
On 31 March, 2014 the applicant attended a hearing before the tribunal. She attended by video conference. Subsequently, on 13 June, 2014 the tribunal affirmed the first respondent’s delegate’s decision not to grant the visa to the applicant.
In the tribunal’s reasons for decision, the tribunal summarised the applicant’s claims as follows:
14. The applicant claims to fear returning to China because she fears harm from underworld figures who are connected to the government.
15. She also fears returning to China because they will know she has been unlawful in Australia as her details were leaked and they, authorities, will accuse her father of sending money overseas. She provided a copy of a letter she claimed was evidence that her details had been leaked.
16. At hearing, the applicant reiterated her claim to be fearful of gangsters who are connected to the authorities if she returns to China. Therefore, the authorities will not be able to protect her.
It was not suggested in the application that I have just heard, that the tribunal misapprehended any of the grounds upon which the applicant claimed to be entitled to the ground of the protection visa. It was not suggested that the tribunal misunderstood the basis upon which she was advancing her visa application.
That is so notwithstanding that the applicant did not seem to have a full appreciation of the grounds of her application for review, as set out in the application for review that was filed on 17 July, 2014. She explained that the application to this Court had been prepared by an agent who was able to prepare the documents for her but who was unable to appear to otherwise prosecute this review application. Nonetheless – and as I have already said – the applicant did not contend before me, either in the documents or orally, that the tribunal had misapprehended the basis upon which she claimed protection.
The tribunal’s reasons for decision from paragraph 17 onwards sets out the claims made by the applicant in more detail and records the interaction between the tribunal member and the applicant as the hearing unfolded. It was not suggested that the tribunal misunderstood any of the claims made by the applicant during those exchanges.
After recording in its reasons the evidence before it, the tribunal dealt with the applicant’s claim concerning the “gangsters”. Its findings about the matters relating to the “gangsters” were summarised by saying:
The tribunal does not accept the applicant’s claims to fear harm from gangsters if she returns to China.
Thereafter, from paragraphs 32 through to paragraph 46, the tribunal explained why it did not accept the applicant’s claims. The tribunal had concerns about the applicant’s evidence which the tribunal described as:
Vague, inconsistent, general in substance and lacking in persuasive detail.
The tribunal accepted some of the matters that the applicant had to say. But, by and large, it determined that the applicant was not a credible witness. The tribunal explained why that was so and, insofar as the tribunal’s findings about the applicant’s credit are concerned, they were findings which were plainly open to the tribunal on the material before it.
There were, indeed, inconsistencies in the applicant’s evidence. Both between the initial visa application, what was said to the first respondent’s delegate and what was said to the tribunal. That other tribunals might have come to a different view about the applicant’s credit or may have used the apparent inconsistencies in different ways is not to the point. Findings of credit and findings of fact more generally are matters entirely for the tribunal and unless there can be demonstrated some finding which is based on an absence of evidence or a finding which is otherwise not open, either expressly or by inference, the findings of fact made by the tribunal are unimpeachable.
There is no jurisdictional error on the part of a tribunal that makes a wrong finding of fact.
As to the claim related to the identification of the applicant through the leaking of her details, the tribunal considered that matter from paragraph 47 through to paragraph 49 of its reasons. The tribunal accepted, for the purposes of the application before it, that the applicant’s details had been revealed and that the authorities in China were probably aware that she had been named by the Department of Immigration in Australia as a person who had claimed protection in this country (see paragraph 47 and paragraph 48 of the tribunal’s reasons).
However, the tribunal did not consider that by reason of those matters, the applicant established her claim to the visa. The tribunal explained that, in the tribunal’s view at least, the Chinese authorities would know that the applicant had been detained in Australia because the Department of Immigration will approach the Chinese Consulate or Embassy about her identity and documents for her return to China. The tribunal accepted that the Chinese authorities would know that the applicant had left China in May, 2003 to travel to Australia to study. The tribunal accepted that the Chinese authorities would know, irrespective of the privacy breach that she had been detained in immigration detention in Australia: “because she did not have a visa to continue to stay in Australia”.
The tribunal also:
Accepts that authorities in China could well assume that the applicant claimed asylum in Australia so that she could remain permanently in Australia, as many Chinese citizens detained in Australia for overstaying their visas in Australia do.
The tribunal referred to country information which demonstrated, according to the tribunal, that the applicant would be questioned and interviewed after her return to her country as a failed asylum seeker from Australia. However, the tribunal did not accept that the applicant’s lodging of a protection visa application or being unlawful in Australia, of itself, gave rise to a real chance that the applicant faced serious harm on return to China by reason of her membership of a particular social group, such as failed asylum seekers or people being unlawful in Australia.
The tribunal concluded that it was not satisfied there was a real chance that the applicant would face persecution for the reasons expressed by her on her return to China now or in the reasonably foreseeable future. The tribunal, therefore, concluded that having regard to both section 36(2)(a) and section 36(2)(aa) of the Migration Act, the applicant did not succeed in establishing her claim to the visa.
The first ground of the application specified by the applicant is in the following terms:
1. The tribunal fell in jurisdictional error by expressly disregarding the claim of the applicant that her father had been caught up between the high up officials and the gangsters and her father became a scapegoat for the corruption deals, in that, this approach constituted:
(a) a failure to take into account a relevant consideration; and/or
(b) an unreasonable decision, in that it was “reasonable, illogical or irrational”.
PARTICULARS
(c )In the RRT hearing, the applicant has told the Tribunal that her father has been investigated by the authorities 5 times.
(d) The Tribunal affirmed the decision to refuse the Protection Visa application. That decision was made by taking the view that her father was not dismissed from his position without referencing his father’s circumstances.
…
What is apparent from the tribunal’s reasons for decision is that the tribunal properly recognised the claims that were being made by the applicant. The tribunal discussed those claims and the applicant’s evidence about those claims in considerable detail. The first respondent submits that it is not clear from the application relied upon by the applicant which relevant consideration she contends the tribunal failed to take into account. I confess, it is impossible for me to discern that either.
The applicant was given the opportunity to make oral submissions about ground 1 of her application, but that did not assist to identify the relevant consideration that she says the tribunal did not take into account. Essentially, it seems to me that the applicant’s complaint is that her claims made to the tribunal were not accepted. That is a matter entirely for the tribunal. It is not appropriate for this Court, nor is it permissible legally for this Court, to embark upon a consideration of the merits of the tribunal’s decision. It is, as I have said, a matter entirely for the tribunal.
The first ground of the review application, as expressed in the application itself and as explained by the applicant today, does not reveal any jurisdictional error on the part of the tribunal. The second ground, which I think, having regard to the submissions of the first respondent, commences at subparagraph (e) of paragraph 1 of the application, is in the following terms:
(e) At paragraph 48, the tribunal refused to take into account her name was published on the official websites, which has been accessed by many countries. That decision was made without:
i. Advising the applicant of the need to provide third party evidence of the publication of her name; or
ii. Advising the applicant that in the absence of such evidence, the Tribunal would not believe that claim was in fact genuine.
2. The Tribunal fell in jurisdictional error by breaching the common law rules of procedural fairness.
PARTICULARS
(a) The Tribunal did not believe the factual claim of her name published to the World including Chinese Authority, and as a direct consequence did not consider the new convention claim.
(b) The tact that the Tribunal did not believe the applicant’s claim of her name publication made this a “live issue” in the proceedings. The Tribunal was therefore obliged to put the applicant on notice that her factual claim as to her name publication would not be believed and provide her with an opportunity of sufficient time to respond.
(errors in original)
There are a number of things to say about this ground. The first is that the common law rules of procedural fairness do not apply. The Migration Act itself contains a code about procedural fairness. In any event, the second matter to be said about this ground is that the factual premise upon which it is based is incorrect. The ground seems to be based on the proposition that the tribunal did not accept that the applicant’s name was published by the Department and that it would have been made known to the Chinese authorities.
As I have already indicated, the tribunal, in its reasons for decision, accepted those facts. It accepted, for the purposes of the application then before it that the applicant’s name had been so published. In paragraph 48 of the tribunal’s reasons for decision, the tribunal says this:
The tribunal accepts that the names of many immigration detainees were published/available on the Department’s website as the applicant claims, and that this was reported upon by Australian media sources. While the tribunal has no information available to it to enable it to make a finding about whether the applicant’s details were published on the Department’s website as claimed, for the purposes of this decision the tribunal accepts that her name was on the list and could have been seen by Chinese authorities as the applicant claims.
Whilst it may be true that the tribunal did not make a finding of fact that the Chinese authorities had seen the applicant’s name on the list, the tribunal accepted the proposition and thereafter, in paragraph 49 of the reasons for decision, went on to explain why the data breach, in the circumstances of this case, did not matter. As I have already indicated, the tribunal thought that, even without the data breach, the Chinese authorities would have known about the applicant.
In oral submissions before me, the applicant suggested that a crime had been committed by the Department, and that she had rights as a result of the breach of privacy that she has endured at the hands of the Department. She may be right on both of those counts, but it does not matter to this proceeding. Whether a crime has been committed by the Department and whether her rights have been intruded upon in the way in which she claims is, for the purposes of determining whether there has been a jurisdictional error committed by the tribunal, irrelevant. In my view, ground 2 of the application must fail.
I have been assisted considerably by the written submissions delivered on behalf of the first respondent. The first respondent is a model litigant and in discharging the obligations cast upon it, the first respondent’s written submissions make some other observations about the tribunal’s decision.
At the core of the tribunal’s decision are the credibility findings which it makes against the applicant. As the first respondent has submitted in his written submissions, in the circumstances of this case, those credibility findings are not impeachable. The tribunal’s job is to make findings of fact, and findings of fact on credibility are – as has been said in innumerable cases now – a function of the primary decision maker par excellence. There is nothing in the tribunal’s reasoning process as revealed by the reasons for decision, which, in my view, would indicate that it has fallen into any error, let alone jurisdictional error, in making the credibility findings that it has.
In all of those circumstances, the applicant does not establish a jurisdictional error on the part of the tribunal and the application filed on 17 July, 2014 must be dismissed.
RECORDED: NOT TRANSCRIBED
Ordinarily in applications of this kind, costs follow the event unless there are special circumstances which indicate that that general rule should not be applied. There are no special circumstances in this case. Costs should follow the event.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 5 May 2015
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