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[2015] FCA 770
Federal Court of Australia
2015-07-28
Farrell J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of Judge Smith of the Federal Circuit Court of Australia delivered on 29 May 2015: see AFU15 v Minister for Immigration and Border Protection [2015] FCCA 1528 ("AFU15"). These reasons have been revised from an ex tempore judgment. 2 The Minister made an application to amend the name of the second respondent to "Administrative Appeals Tribunal". I granted that application.
Background 3 The appellant is a female citizen of the People's Republic of China. She arrived in Australia on 19 December 2012 on a student visa that expired on 24 June 2014. When the appellant's visa expired, she became an unlawful non-citizen. On 10 September 2014, she was detained pursuant to s 189 of the Migration Act 1958 (Cth). 4 The appellant applied for a protection visa on 29 September 2014. A delegate of the Minister refused to grant the visa on 4 December 2014. The appellant applied to the Refugee Review Tribunal for review of the delegate's decision on 11 December 2014. The Tribunal affirmed the delegate's decision on 27 February 2015 and set out its reasons in a Statement of Decision and Reasons ("Decision Record"). 5 The basis for the appellant's claim to protection are summarised at [4]-[5] of the primary judge's reasons, as follows: [4] … In effect, her claims were that in order to raise funds for the applicant's study overseas, her father took out a loan from a private finance company, which, although unknown to him at the time, was an organised crime syndicate. Unfortunately, her father suffered from a stroke and was unable to continue to work, and so fell into default on the loan. [5] In August 2013, in light of this default, several thugs came to collect repayment. Later, more than ten people came to the convenience store which was owned and operated by the applicant's father and took all of the goods from the store as security for repayment. Further, the syndicate asked her father to sell the house in which he lived to pay off the liability. The applicant's father called the police and the thugs did not show when the police were present, but when the police left they returned. The applicant fears that if she were to return to China that the thugs would abduct her and force her into prostitution or remove her organs for money because her father is unable to pay the loan. 6 The Tribunal had "significant concerns about the applicant's credibility and the reliability of her evidence" and was "not satisfied she [had] told the truth in relation to critical aspects of her claims". At the hearing, the Tribunal member raised a number of concerns with the appellant and they were addressed in a written submission made by her migration agent filed after the hearing. In the result, the Tribunal did not accept the appellant's claims and it was not satisfied that there was a real chance that the appellant would suffer persecution if returned to China now or in the foreseeable future. The Tribunal was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed to China, there was a real risk that the appellant would suffer significant harm. 7 The appellant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court on 19 March 2015. The appellant appeared in person at a directions hearing and at the hearing of her review application on 29 May 2015. At the directions hearing, the appellant was given the opportunity to file evidence or submissions in support of her application or to amend her application; she did not do so. The appellant made oral submissions at the hearing. The primary judge dismissed the application, finding that there was no apparent jurisdictional error by the Tribunal.
Appeal to this Court 8 The appellant filed a notice of appeal in this Court on 10 June 2015. The appellant has four grounds of appeal (as written): 1. The Decision of the Federal Circuit Court had the effect of finally determining the Appellant's claim for relief. 2. The Federal Circuit Court erred in its final order. 3. The Federal Circuit Court denied the Appellant natural justice. 4. Unless the Appellant's proceedings for judicial review of the refusal to grant her a protection visa are successful, the Appellant will have no right to apply for a further protection visa by operation of section 48A of the Migration Act 1958. 9 The appellant filed no written submissions. She appeared at the hearing with the assistance of an interpreter. The appellant was invited to explain what she meant by the grounds of appeal. The appellant accepted that the first three grounds were a complaint that the primary judge dismissed her application and the fourth ground was that, although she had told the truth to the Tribunal, it did not believe her. She accepted that she had been given an opportunity to respond to the Tribunal's concerns, and had done so in written submissions, but she did not see the point if the Tribunal would not believe the evidence provided. She felt under a disability because she could not afford a lawyer, while the Minister could, and she did not know how she could prove that her father was indebted to a gang since he was in China and disabled by a stroke. 10 Without minimising the difficulties faced by unrepresented applicants, the fact that a claimant may be unrepresented and may not be either familiar with the legal requirements to be satisfied or may not be fluent in the English language cannot transfer the responsibility of substantiating a claim from himself to those entrusted with the responsibility of determining the claim: see SZOOM v Minister for Immigration and Citizenship [2011] FCA 152 at [19] per Flick J. 11 Credibility of witnesses and the weight to be given to evidence received by the Tribunal is a matter for the Tribunal "par excellence". 12 I have carefully considered the materials in the appeal book, which included the Decision Record, the appellant's visa application and a translation of her accompanying statement, the submissions filed on her behalf by a migration agent after the Tribunal hearing as well as the primary judge's reasons. I am satisfied that both before the Tribunal and before the primary judge, the appellant had an opportunity to provide evidence and argument in support of her applications. After careful review, I perceive no appellable error on the part of the primary judge, and no jurisdictional error on the part of the Tribunal. 13 I dismiss the appeal. I order that the appellant pay the first respondent's costs, as agreed or taxed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.
AFU15
Minister for Immigration and Border Protection