EYS20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 651

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EYS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 651

File number(s):	SYG 2700 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	12 June 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth): s 426A
Division:	Division 2 General Federal Law
Number of paragraphs:	43
Date of last submission/s:	12 June 2023
Date of hearing:	12 June 2023
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Solicitor for the Applicant:	HWL Ebsworth Lawyers

ORDERS

SYG 2700 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EYS20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	12 JUNE 2023

THE COURT ORDERS THAT:

1.The application filed on 26 November 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,600.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. On 29 October 2020, the Administrative Appeals Tribunal (“AAT”) affirmed a decision not to grant the applicant, EYS20, a protective visa.  On 26 November 2020, the applicant asked this Court to review that decision of the AAT. 

2. The background of the matter is that the applicant was a citizen of China.  He was married in 1992.  He had parents, a wife and two adult married sons residing in China.  He came to Australia on 4 November 2016, legally, on his own passport. 

3. On 10 January 2017, he made the application for a protection visa which is the subject of these proceedings.  The delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Minister”) refused to grant that application on 3 March 2017.

4. The applicant asked the AAT to look at the matter again.  It was some time before the AAT did get around to looking at the matter.  Finally, the AAT made contact with the applicant in September 2020.

5. The applicant had appointed a person, whom I will call X, as his migration representative.  The AAT wrote to X on Friday, 18 September 2020.  This was to say that a hearing would be set down very soon, but that it would be an in-person hearing.  X replied that same day to the AAT, saying that the only person who would attend the hearing was the applicant, and that he needed a Mandarin speaking interpreter.  That reply is reproduced at Court Book (“CB”) 102. 

6. On Tuesday, 6 October 2020, the AAT wrote to X again.  In that letter, a hearing invitation was issued.  That letter said that the AAT has considered the material before them but were unable to make a favourable decision on this information alone.  For that reason, the applicant was invited to appear before the AAT to give evidence and present arguments in relation to the issues in his application.

7. The hearing was set for 28 October 2020 at 10 am.  The invitation said that the applicant should arrive between 9.40 am and 9.45 am.  The invitation said that they had arranged for a Mandarin interpreter to attend.  The invitation also said the following:

   If you do not participate in the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us.

8. That invitation appears at CB 107 to 109. 

9. That same day, the person X replied to the AAT.  The reply was in the form of answers to a question. 

10. The first question was, “Will you take part in the hearing schedules for 28 October 2020?” The applicant ticked “yes”. 

11. The question, “Will your representative be participating?” the applicant ticked “no”. 

12. The question, “Do you need an interpreter?” the applicant ticked “yes, Mandarin”. 

13. The question, “Is there any issue that may affect your ability to participate in the hearing?” the applicant ticked “no”. 

14. The question, “Do you believe that you will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation?” the applicant ticked “no”. 

15. The question, “Do you intend to rely on any documents at the hearing; e.g., written witness statements, written submissions, country information or other evidence?” the applicant ticked “no”. 

16. The next relevant question was whether you intend to ask the AAT to take evidence from another witness.  The applicant ticked “no”.

17. The form was signed by the agent and sent to the AAT.  It appears at CB 110 to 115. 

18. The hearing record at CB 116 to 119 indicates that the applicant did not turn up.  In their reasons, the AAT gave a shortened view of that history and said the following at paragraph 4:

    Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5). The Tribunal observes the applicant also did not attend the interview before the delegate at the Department. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

19. The AAT then went through the information that the applicant had given to it.  The AAT noted that the applicant’s claim was that he was persecuted by the Chinese authorities because he resisted the illegal demolition and occupation of his whole house.  In his statement, the applicant said that, on 5 March 2016, he was informed that his house would be appropriated and demolished and that he and other families discussed it and agreed to the demolition.  He said that on 8 March 2016, they signed an agreement and agreed to move out before July 2016. 

20. He said that on 29 April 2016, his wife called him while he was on his way to work to say that demolition workers had come into the house and started to wreck it.

21. He said that his son had tried to stop them, and his son was beaten badly, suffering injuries that required urgent medical intervention.  The applicant said that he went to the police who said that they needed further investigation and evidence.  He said he tried to complain to the village head who refused to get involved. 

22. He said that he then wrote a complaint letter to the city government, asking for an investigation.  He said on 15 May 2016, he was arrested and taken to detention on the grounds of making an illegal petition.  He said that he had been told then that his house had been illegally built and the demolition subsidy, that he was going to get, was set aside.  He said that they refused compensation to him and they denied harming his son. 

23. He said that he was physically assaulted at the detention centre and forced to do physical labour.  He said, on 25 June 2016, he paid a fine of 5000 Yuan and wrote a letter of guarantee and then he was released.  He said that he returned home and the police repeatedly harassed him and, for this reason, he fled to Australia. 

24. He said that, recently, which is after he arrived in Australia, the village chief was arrested for corruption and bribery.  The applicant said that he is very afraid to return to China. 

25. The AAT noted that the applicant did not attend the interview with the Department and had also declined to attend before the AAT.  The AAT said at paragraph 15 of their reasons that:

    Since the lodgement of the application, it appears the applicant has declined to engage with the process to consider his protection claims either before the Department or Tribunal.

26. The AAT said that they need to make findings of fact in relation to those claims which usually involved an assessment of credibility of the applicant.  They could not do so because the applicant had not appeared.  The AAT looked at the material that he had put before them.  The AAT said that they would have explored these claims in more detail with the applicant if he had attended the hearing in order to assess his credibility and test the veracity of his claims. 

27. The AAT said it would have asked him for further details and whether he had any supporting evidence to corroborate the claims that he had made.  The AAT said that because they had no corroboration, they were unable to be satisfied that the applicant owned a property in China; that the property was proposed to be demolished; that the son of the applicant was attacked by a gang of demolition workers; that the applicant tried to complain about this; that the applicant was arrested and detained and mistreated by police; and, that he paid an amount of money to be released. 

28. Because the AAT could not be satisfied of those matters, the AAT was not satisfied that there was a real chance that the applicant would suffer persecution upon return to China.  For those reasons, the AAT was not satisfied the applicant was someone who had satisfied the requirements of the refugee provisions. 

29. The AAT was also unable to be satisfied on the evidence of the requirements of the complimentary protection criteria having been satisfied. 

30. For those reasons, the AAT affirmed the decision not to grant the applicant a protection visa. 

31. The AAT notified representative X with a copy of their reasons on 30 October 2020.  And as I said earlier, the application which was before this Court was filed on 26 November 2020.   

32. In that application, there were four grounds of jurisdictional error.  They were:

    1. Tribunal did not fully consider claims in front of it.

    2. Tribunal did not make adverse findings confidently, but still made unfavourable decision against me.

    3. Not all relevant information was disclosed to me.

    4. Tribunal did not properly consider what would happen to me if I return to China.

33. Given the non-particularity of those claims and the circumstances of the hearing, the Minister asked for this hearing to be a summary dismissal hearing.  Because of the manner in which the application came to this Court, I have treated the application, today, as if it were a full hearing.

34. The applicant has appeared before me today, unrepresented, but he has been assisted by an interpreter in the Mandarin language.  I let the applicant know what the AAT decision was and why the AAT said that they made the decision that they did.

35. I asked the applicant to say anything that he wanted to, in support of his application.  The applicant said that the AAT has not considered his claims fully.  In relation to that, I note that submission was consistent with the first ground of the application. 

36. The applicant really said nothing more in support of the merits of his application.  It would seem to me that with regards to the grounds of the application, they can be disposed of relatively quickly.

37. The AAT was able to articulate the totality of the claims that were before it.  The AAT did fully consider exactly what it was that was before it.  The AAT explained that it could not accept these claims on face value and wanted the applicant to provide further information but he did not appear at the AAT to give them that further information.  It made unfavourable decisions against the applicant but explained fully why it was that they had done so.

38. The AAT did consider what the applicant had said would happen if he returned to China but, without that further information from the applicant, there was simply insufficient evidence upon which they could be satisfied of the fulfilment of the criteria, according to the AAT.  A careful reading of everything that the AAT has said, shows that all relevant information was before the applicant and there was nothing that was not disclosed to the applicant.

39. For those reasons, the stated grounds of the application illustrate no jurisdictional error. 

40. As I explained to the applicant, the AAT did everything that it could on the information that was before it.  The fault of there being no other information before the AAT was not that of the AAT itself, but rather the applicant.  The applicant explained to me that he was too far away to attend the hearing that day.  He said that he didn't have enough time to get back.  I explained to him that this information is not before the Court and has never been raised before the Court before today. 

41. I asked the applicant whether he had said to the AAT, or to anyone, that he could not make the AAT hearing.  He said that he told his agent.  There was no information before the Court about this. 

42. In any event, the fact is that the applicant did not attend the AAT hearing and, pursuant to section 426A of the Migration Act 1958 (Cth), the AAT was entitled to do what it did. Because it was entitled to do what it did, there cannot be said to be any jurisdictional error.

43. Having found that there has been no jurisdictional error committed by the AAT, I dismiss the application with costs in the sum of $5,600. 

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       12 June 2023