Abc16 v Minister for Immigration

[2017] FCCA 566

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 566

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – protection visa application – claim applicant would be persecuted and harmed if he returned to China – application for judicial review of Administrative Appeal Tribunal decision to affirm delegate’s decision to refuse protection visa – no jurisdictional error – application to this Court dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA , 424A, 477

Cases cited:

BAX15 v Minister of Immigration and Border Protection [2016] FCA 491

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: ABC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 16 of 2016

Judgment of: Judge Dowdy

Hearing date: 14 June 2016

Delivered at: Sydney

Delivered on: 30 March 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr L Dennis

Solicitors for the Respondents: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed on 6 January 2016 in this Court is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 16 of 2016

ABC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of China aged 35 years, having been born on 26 November 1981.

2. By Application filed in this Court on 6 January 2016 he seeks to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 1 December 2015 which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 5 June 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).  

3. The Application to this Court was not filed within the period of thirty-five days from the date of the Tribunal’s decision (which expired on 5 January 2016) as required by s.477(1) of the Migration Act 1958 (Cth) (Act) and accordingly the Applicant was one day out of time and needed an extension to 6 January 2016 pursuant to s.477(2) of the Act. The Minister properly consented to such an extension and on 29 January 2016 I ordered by consent that pursuant to s.477(2) of the Act, the time for the filing of the Application therein be extended to 6 January 2016, considering that it was necessary in the interests of the administration of justice to do so.

Background

1. The Applicant applied for a Visitor (Class FA) (Subclass 600) visa (Visitor visa) at the Australian consulate in Shanghai on 18 April 2013. He claimed on his Visitor visa application to work as a manager for Beijing Quingshang Tenglong Animal Breeding Co-operative (Animal Breeding Co-operative) and to be visiting Australia for leisure purposes. This application was successful and he was granted a Visitor visa on 3 May 2013.

2. He arrived in Australia on 2 June 2013 and upon expiry of his Visitor visa on 2 September 2013 he continued to remain in Australia as an unlawful non-citizen until on 21 January 2014 he lodged his application for a Protection visa.

Claims For Protection

1. In support of his Protection visa application, the Applicant claimed to have been a farmer on his family land and working as such from January 2000 until he left China.

2. The Applicant’s claims for protection were put as arising from his reporting of illegal behaviour in the election process and corruption of village cadres during the elections in Jiashizhuang Town in July 2012 which resulted in his persecution by the Chinese government.

3. The Applicant asserted that the elections were “filled with illegal activities” with the intention of getting a Mr Ruisheng Ge re-elected over a Mr Ersheng Liu. The villagers of Jiashizhuang were angry with the election result in favour of Mr Ruisheng Ge and in August the Applicant and Mr Ersheng Liu and some others went to the town government and reported “illegal behaviours during the election process”. They asked for an auditing of the village accounts and an investigation of Mr Ruisheng Ge, whom they accused of “embezzling land compensation and wasting public money”.

4. The Applicant claimed that the Jiashizhuang Town Government declared that there was no problem with the village accounts and that the election process resulting in the election of Mr Ruisheng Ge was legal and valid. Mr Ruisheng Ge became aware of the Applicant’s complaints concerning the village accounts and election. He retaliated and organized for the Applicant to be beaten and warned not to make trouble again.

5. The Applicant claimed that ultimately on 20 October 2012 he was taken by the village security team to the village committee at the instigation of Mr Ruisheng Ge where his face was slapped, he was kicked hard and his head was pressed to hit the ground, and he was tortured all night.

6. The Applicant then decided to leave China, as he said he could not survive there with corrupt officials shielding one another and people’s rights not being guaranteed.

Grounds for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant took part in a Protection visa interview with the Delegate on 4 June 2014. In the result the Delegate did not accept that the Applicant had departed China on account of a fear of harm, that he had come to the adverse attention of the Chinese authorities or anyone else in China since his departure or that he had a genuine fear of returning to China.

2. The Delegate was concerned with the fact that whereas in support of his Protection visa application the Applicant claimed to have worked on his family land from approximately January 2000 until his departure from China, on his Visitor visa application he had inconsistently stated that he worked as manager of the Animal Breeding Co-operative. The Applicant in response asserted that his migration agent in China had provided false information on his Visitor visa application. The Delegate accepted that the Applicant was indeed a farmer but went on to find that he had provided a fabricated employment history on his Visitor visa application for the purpose of obtaining a favourable immigration outcome.

3. The Delegate was also concerned that the Applicant, having asserted that he had been tortured all night on 20 October 2012, then delayed leaving China until June 2013. The Delegate considered that this overall delay raised doubts as to the Applicant’s alleged fear of persecution or significant harm at the hands of Mr Ruisheng Ge, his associates, the Chinese authorities or anyone else in China. The Delegate stated that the Applicant “confirmed that this was true” and that his reasons for travelling and seeking protection in Australia were because he felt Chinese citizens had no legal rights and that Australia is a democratic country where human rights are respected.

4. In the result the Delegate was not satisfied that Australia had protection obligations to the Applicant either under the Refugees Convention Criterion or the complementary protection criterion and she accordingly refused to grant him a Protection visa.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 29 June 2014 for a merits review of the decision of the Delegate and appeared before it on 24 November 2014 to give evidence and present arguments.

2. The Tribunal by its decision of 1 December 2015 affirmed the Delegate’s decision. In short, it did not find the Applicant to be a credible witness and was not satisfied that he had told the truth in relation to fundamental aspects of his claims. Overall it did not find his evidence to the Tribunal to be consistent, plausible or convincing.

3. In coming to its decision the Tribunal had five specific concerns which I identify below.

Tribunal’s First Concern

1. Its first concern was that the Applicant had changed his evidence from that given to the Delegate by adding two new claims before the Tribunal. The Applicant had told the Delegate that he had decided not to involve himself again in politics, petitioning or complaint lodging. He had said that he and his family had not come to the further attention of or been harmed or harassed by Mr Ruisheng Ge, his associates or anyone else in Jiashizhuang Town since October 2012. However the Applicant was now inconsistently telling the Tribunal that he would definitely get involved in politics again if he returned to China. The Tribunal was of the view that the Applicant had changed his evidence in an effort to improve his position before the Tribunal having regard to the comments of the Delegate in her refusal letter.

2. At [33] of its Decision Record the Tribunal found that the Applicant had changed the evidence that he had given to the Tribunal from that which he had given to the Delegate by:

   a)Contradicting his earlier unequivocal evidence that he had decided never again to involve himself in politics, petitioning or complaint lodging;

   b)Introducing a new claim before the Tribunal that Mr Ruisheng Ge’s hooligans “came for me in February or March 2013 after Chinese New Year and asked me if I would appeal”; and

   c)Introducing a new claim at the Tribunal hearing that Mr Ruisheng Ge bullied his son at primary school, such that he and his wife had to move to live with her family and send their son to a new school.

Tribunal’s Second Concern

1. The Tribunal considered that the Applicant had provided inconsistent information to the Delegate and to the Tribunal in relation to how long he was attacked on 20 October 2012, the injuries which he claimed to have consequently suffered at the hands of Mr Ruisheng Ge’s hooligans and his resumption of work.

2. At [35]-[37] of its Decision Record, the Tribunal records the inconsistencies which concerned it and which it put to the Applicant.

3. In the result the Tribunal found that the Applicant’s evidence about the nature and extent of his injuries and whether he went back to work after the incident on 20 October 2012 was vague and inconsistent.

Tribunal’s Third Concern

1. The Applicant claimed that Mr Ruisheng Ge’s hooligans returned to his father’s home in September 2014 to look for him, and that they damaged the home by smashing things including furniture and glass. The Tribunal was not satisfied with the Applicant’s explanations as to why it was the case that he was unable to produce to the Tribunal any photographs of damage to his father’s home.

2. Further, the allegation of damage to his father’s home in September 2014 and his own torture was inconsistent with the further evidence from the Applicant that his father, villagers and Mr Ersheng Liu were continuing to agitate and make appeals to appropriate Chinese governmental authorities concerning corruption.

3. Rather, the Tribunal considered that if the Applicant’s father and villagers together with Mr Ersheng Liu were agitating appropriate Chinese governmental authorities, this indicated that they did not fear harm from Mr Ruisheng Ge or his hooligans. Therefore it was reasonable to expect that the Applicant himself should also not fear harm because of issues in relation to the July 2012 Jiashizhuang Town elections if he returned to China.

Tribunal’s Fourth Concern

1. The Tribunal was of the view that the Applicant’s delay in applying for protection was inconsistent with a genuine fear of persecution in China.

2. At [45] of its Decision Record the Tribunal stated that the Applicant applied in China in November 2012 for his passport, which was issued on 27 November 2012, but that he did not apply for his Visitor visa until after Chinese New Year in late February 2013 and that this delay might lead to the Tribunal doubting his claim of fearing harm at the hands of Mr Ruisheng Ge’s hooligans.

3. I note at this point that in fact, as stated at [4] above, the Applicant applied for the Visitor visa in Shanghai on 18 April 2013: see Court Book at page 106.

4. The Tribunal then recited that the Applicant arrived in Australia on 2 June 2013 but only applied for a Protection visa on 21 January 2014, more than 7 months later, and that this was not consistent with someone who genuinely feared returning to his home country.

5. In the result the Tribunal was of the view that the Applicant’s delay in applying for protection was inconsistent with the actions reasonably expected of someone who genuinely feared persecution in his home country and that his explanations for the delay in leaving China and in lodging his Protection visa application were unpersuasive and unsatisfactory.

Tribunal’s Fifth Concern

1. The Tribunal stated at [48] of its Decision Record that the Applicant’s Visitor visa application gave it “serious cause for concern”. It relevantly noted the discrepancy between the Applicant’s claim in his Visitor visa application to be manager of an Animal Breeding Co-operative and the claim in his Protection visa application to be a farmer, including his direct denial that he was a Manager with an animal breeding business when asked by the Tribunal. The Tribunal rejected the Applicant’s claim that his migration agent was solely responsible for this inconsistency and it considered that the Applicant’s willingness to allow his agent to provide false information did not reflect well on his credibility.

Conclusion of Tribunal

1. In the result the Tribunal formed the view that the Applicant had not been truthful in all of his claims. It accepted that there were voting irregularities in the Jiashizhuang Town elections in July 2012 and that some of the disaffected villagers reported Mr Ruisheng Ge’s conduct to the town government and that Mr Ruisheng Ge retaliated against the petitioners.

2. However, the Tribunal did not accept that the Applicant was involved in Mr Ersheng Liu’s campaign to be elected and in any subsequent petition. It found that having considered the Applicant’s claims individually and cumulatively it was not satisfied there was a real chance that the Applicant would be subject to any harm if he returned to China.

3. The Tribunal was satisfied that it was the Applicant’s father who was assisting Mr Ersheng Liu’s electoral campaign and continues to be involved in petition activity with him, and that the Applicant was merely articulating the experiences of another person, possibly those of his father.

4. The Tribunal rejected the entirety of the Applicant’s claims and was not satisfied that Australia had protection obligations to him either under s.36(2)(a) or s.36(2)(aa) of the Act. It accordingly affirmed the Delegate’s decision not to grant to him a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds for review relied upon by the Applicant are as follows:

   (1)Jurisdictional error is made.

   The Tribunal does not fully consider factors with respect to my mistreatment due to petitioning and potential risk I will face upon return to China. The Tribunal made decision in terms of some irrelevant facts, such as late application for protection visa and agent’s assistance for my previous visa.

   Further, some reasoning is not right, which leads to wrong conclusion. For example, the Tribunal states that the applicant’s father does not fear his safety because he still lives in the same place and continues to be involved with petition activity. I believe that there is no causal relationship between fear of safety and petition activity. Fight for justice does not mean that they do not worry about their own safety and retaliation. Therefore, the conclusion that the applicant will not face any risk is wrong.

   (2)     The Tribunal considers my case with bias.

   The Tribunal believes that late application for protection and obtaining previous visa under the assistance of the agency made me not credible. Such conclusion is not fair to me.

Ground 1

1. In my view this Ground is not made out and in reality seeks impermissible merits view. I cannot discern that the Tribunal took into account any irrelevant consideration.

2. The Tribunal’s Decision Record appears to me to constitute a reasoned, coherent and comprehensive decision which does not manifest illogicality, irrationality or legal unreasonableness or lack an intelligible justification.

3. The Tribunal correctly identified and addressed the Applicant’s claims but unfortunately for the Applicant, it rejected them, essentially on credibility grounds.

Ground 2

1. Insofar as this Ground and also Ground 1 particularly assert that making a late application for a Protection visa is an irrelevant fact and that the Tribunal erred in this regard, this submission is clearly not in accordance with authority.

2. In BAX15 v Minister of Immigration and Border Protection [2016] FCA 491 Perry J at [41] – [43] stated the principles concerning the relevance of delay in lodging an application for a protection visa as follows:

   [41]In my view, the appellant’s delay in applying for a visa is not an irrelevant consideration. Rather, in line with the principles identified in the joint judgment in Yusuf, the significance attributed to that delay constitutes a part of the Tribunal’s process of making a particular finding of fact upon which the Tribunal has acted, namely, in reaching a view as to whether it was satisfied that the appellant has a subjective fear of persecution and otherwise in assessing his credibility.

   [42]Nor do I consider that the Tribunal in having regard to this delay in reaching a view on these matters was acting unreasonably or irrationally. For example in Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 349, Heerey J said with respect to a similar line of reasoning:

   ...the applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicants alleged fear of persecution. It is a rational consideration open on the material.

   [43]While the delay in making the protection visa application in this case was shorter than that in Selvadurai, namely, two months as opposed to 20 months, I accept the Minister’s submission that in this case it was not unreasonable or irrational for the Tribunal to have regard to the appellant’s delay in the manner explained. In so saying, I acknowledge that the situation might be different in other cases depending upon the circumstances if, for example, the delay were for a very brief period of time. Further, the Tribunal did not treat the existence of the delay as the end of its enquiry but considered the genuineness of the explanation put forward by the appellant: Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 (Wilcox, Einfeld and Tamberlin JJ). The fact that the Tribunal did not consider that explanation to be genuine is a matter that was open to the Tribunal on the evidence for the reasons that it gave, as the primary judge held. There is no merit in my view in ground two of the notice of appeal.

1. In my view the Tribunal did not take into account an irrelevant fact or matter nor was there anything illogical or irrational in its adverse finding about the Applicant’s delay in making his Protection visa application in Australia. 

2. Insofar as this Ground asserts that the Tribunal was biased because it regarded delay by the Applicant in making a Protection visa application as relevant and it made findings about the Applicant’s involvement with his migration agent in the preparation of his Visitor visa application, such assertion of bias has no basis.

3. First, the Decision Record of the Tribunal on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member. As von Doussa J said in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:

   In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.

4. Second, the Applicant has not tendered a transcript of the hearing before the Tribunal and there is otherwise no evidence whatsoever either of actual bias in the form of prejudgment or that there could be any apprehension that the Tribunal member did not bring an impartial mind to the decision-making process.

Possible Application of Sections 424AA and 424A of the Act

1. Finally, I record for completeness that Mr Dennis, who appeared for the Minister, pointed out that at [49] of its Decision Record the Tribunal recorded that it put to the Applicant that because he had provided false information as part of his Visitor visa application, this might lead the Tribunal to conclude that he is willing to provide or allow his agent to provide false information to achieve a migration outcome.

2. There is no reference to this false information being put pursuant to s.424AA of the Act but in any event the contents of the Visitor visa application was not “information” for the purposes of s.424AA(1)(a) or s.424A(1)(a) of the Act because it did not comprise a rejection, denial or undermining of the Applicant’s claim to be a person to whom Australia owed protection obligations. The claim in the Visitor visa application that the Applicant was the manager of the Animal Breeding Co-operative was not of dispositive relevance to the Applicant’s claims for protection but rather was simply viewed against a later statement in his Protection visa application that he was a farmer, which cast doubt on his credibility. The information in the Visitor visa application only became material because the Tribunal relied upon such information in finding inconsistencies in the Applicant’s evidence and as such it was not necessary for the Tribunal to put that information to the Applicant: see Griffiths J in SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204 at 220 [52] – [53].

3. Further, the same point had been taken by the Delegate and the inconsistency had been pointed out by the Delegate at his interview with the Applicant on 4 June 2014. There was no procedural unfairness resulting in practical injustice by the Tribunal raising with the Applicant the same inconsistency.

Conclusion

1. The Applicant has failed to show any lack of procedural fairness or any other jurisdictional error and the Application must be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     30 March 2017