SZVTZ v Minister for Immigration

[2016] FCCA 993

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 993

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the first applicant’s credit was a live issue before the Tribunal – whether the applicant had a genuine hearing – whether the Tribunal took irrelevant considerations into account – bias – no arguable case of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Federal Circuit Court Rules 2001, r.44.12

First Applicant: SZVTZ

Second Applicant: SZVUA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3394 of 2014

Judgment of: Judge Street

Hearing date: 28 April 2016

Date of Last Submission: 28 April 2016

Delivered at: Sydney

Delivered on: 28 April 2016

REPRESENTATION

The first applicant appeared in person

Solicitors for the First Respondent: Ms B Blackadder
Sparke Helmore

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

3. The first applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3394 of 2014

SZVTZ

First Applicant

SZVUA

Second 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) in respect of a decision of the Tribunal made on 19 November 2014 affirming a decision of the delegate not to grant the applicant’s protection class XA visas. The first applicant is the mother of the second applicant who is a child. Both applicants were found to be nationals of China and their claims were assessed against that country.

2. The claims advanced by the applicants focused on the second applicant’s fear of not being able to be register his hukou into the household registration and that he would not be able to enjoy the rights to public education, healthcare and social benefits provided by the government.  The applicants’ fear is as a result of parents and grandparents being unable to continue to operate their family business of a seaweed farm and the compulsory acquisition of the grandparents’ lands and coercion by private creditors to pay debts owed by the grandparents.  The applicants fear the creditors would continue to pursue debts from the family that would expose the applicants to harm. 

3. The Tribunal made adverse findings in relation to the credit of the applicants and found that the evidence of the parents was one where they were not witnesses of truth and had not told the truth in relation to the critical aspects of the claims.  It was in those circumstances that the Tribunal found that the applicants did not have a well-founded fear of persecution for a convention reason if returned to China now or in the reasonably foreseeable future.  The Tribunal also found that it was not satisfied that there were substantial grounds for believing that as a necessary and reasonable foreseeable consequence of the applicants being removed from Australia to China there is a real risk they would suffer significant harm.

4. On 18 February 2015 a Judge of the Court fixed this matter for a show cause hearing today under r.44.12. The orders made on that occasion also provided an opportunity for the applicant to file an amended application, affidavit evidence and submissions. No such documents were filed. At the commencement of the hearing the Court explained to the first applicant the nature of a show cause hearing. The Court explained that a show cause hearing under r.44.12 was one in which the Court would determine if the applicants had an arguable case. The Court explained that an arguable case was one in which there needed to be an arguable case of relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicants.

5. The Court also explained that it would identify the evidence and then hear submissions from the first applicant and then submissions from the first respondent and hear the first applicant in reply.  The first applicant confirmed that she understood the nature of the hearing as explained by the Court. 

6. The grounds of the application are as follows:

   1. The decision of the Tribunal

   a) was affected by the procedural unfairness.

   b) failed to take into account relevant considerations.

   c) Gave rise to an apprehension of bias in the mind of a reasonable observer.

7. It is apparent from the court book that on 19 September 2014 the applicants were invited to attend a hearing to take place on 31 October 2014. The applicants appeared on that date to give evidence and present arguments. I accept the first respondent’s submission that, on the face of the material before the Court, the Tribunal complied with the requirements of s.425 of the Migration Act 1958 and that the applicant had a genuine hearing.  It is also apparent from the decision of the Tribunal that the applicant’s credibility was the decisive issue before the delegate and it was clear that the applicant’s credibility was a live issue for the Tribunal. 

8. The generalised assertion of a denial of procedural fairness does not identify any arguable case of jurisdictional error.  From the bar table, the applicant contended that the decision was unfair and, in particular, that the Tribunal failed to consider relevant matters.  The first applicant contended that the Tribunal should have believed the applicant and that the evidence she had given was truthful and should have found that there was a well-founded fear of persecution.  Nothing said by the  first applicant identified any conduct by the Tribunal that gives rise to an arguable case of denial of procedural fairness. 

9. It was for the Tribunal to determine the applicants’ credit and the adverse credibility findings made by the Tribunal were open on the material before the Tribunal.  Ground 1(a) fails to identify any arguable jurisdictional error.  In relation to ground 1(b), as indicated, the first applicant contended that the Tribunal should have accepted the first applicant’s evidence.  Nothing said by the applicants identified any relevant consideration that the Tribunal failed to take into account.  Ground 1(b) fails to identify any arguable case of jurisdictional error. 

10. In relation to ground 1(c), no conduct was identified by the applicants that could give rise to an arguable case of an apprehension of bias.  The adverse credibility findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits.  The structure of the Tribunal’s reasons reflects an orthodox approach to the determination of the applicant’s claims.  Ground 1(c) fails to identify any arguable case of jurisdictional error. 

11. I am satisfied that the application fails to disclose any arguable case of jurisdictional error. Nothing said by the applicant from the bar table identified any basis upon which there could be said to an arguable jurisdictional error. The application fails to disclose an arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 May 2016