Acr16 v Minister for Immigration

[2016] FCCA 2300

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACR16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2300

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424A

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v Jia (2001) 205 CLR 507
Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]
NAVK v Minister for Immigration [2004] FCA 1695

SZBYR v Minister for Immigration (2007) 81 ALJR 1190
WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184

Applicant: ACR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 64 of 2016

Judgment of: Judge Driver

Hearing date: 2 September 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S He of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416 in accordance with the Court scale at the time the application was filed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG64 of 2016

ACR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal).  The decision was made on 18 December 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them is set out in the Minister’s outline of legal submissions filed on 25 August 2016. 

2. The applicant is a male citizen of China born on 5 October 1977.[1]  He arrived in Australia on 13 December 2013.[2]

   [1] Court Book (CB) 1

   [2] CB 13

3. The applicant applied for a protection visa on 10 March 2014.[3] His claims were set out in a statement accompanying the application:[4]

   a)the applicant claimed to fear that Chinese authorities would harm him due to his involvement in a successful petition against authorities, because he has two children, and due to religious belief;

   b)specifically, the applicant claimed that local officials resumed land that was collectively owned by the applicant and others. He claimed that he took a lead role in a successful petition seeking to have the collective rights to the land restored in April 2012. The applicant feared that he would lose his land and would be forced to undertake a “male ligation” procedure (which I take to mean a vasectomy) due to the successful petition and because the applicant had two children. The applicant claimed he began going to Church in Australia and fears not being able to practise religious freedom in China.

   [3] CB 1-32

   [4] CB 26-27

4. The application was refused by a delegate of the Minister on 22 August 2014.[5]  The delegate did not accept that the applicant was a credible witness and on that basis, rejected his claims in their entirety.

   [5] CB 65-82

5. The applicant applied to the Tribunal for review of the delegate's decision on 15 September 2014.[6]

   [6] CB 83-110

6. The applicant gave oral evidence before the Tribunal on 15 September 2015 and on 19 October 2015.[7] The Tribunal handed down its decision on 18 December 2015.

   [7] CB 119-122

The decision of the Tribunal

1. The Tribunal formed an adverse view of the applicant's credibility. Having regard to irregularities in the applicant's evidence and the applicant's explanation for those irregularities, the Tribunal found that the applicant was not credible and his evidence, unreliable.[8]

   [8] at [66]-[78]

2. The Tribunal had regard to the applicant's previous offshore application for a visitor visa, in which he claimed he only had one child, and the inconsistency with his present protection visa application, in which he claimed he had two children.[9]  Taken with other inconsistencies in the applicant's evidence, the Tribunal did not accept that the applicant had two children and found that he had fabricated the claim to strengthen his claims for protection.[10]

   [9] at [68]-[69]

   [10] at [81]

3. While the Tribunal accepted that the applicant had been involved in the land resumption petition, it did not accept that officials took adverse action against him[11] and found there was no real chance he would suffer serious harm in China for this reason.[12]

   [11] at [74]-[76] and [81]-[82]

   [12] at [82]

4. With regards to the claim that the applicant feared harm because of his religious beliefs, the Tribunal found that the applicant was not a genuine or committed Christian and did not accept that he faced a real chance of serious harm for this reason.[13]

   [13] at [83]

5. At [84], the Tribunal did not accept that the applicant faced a real chance of harm for the reasons he claimed.

6. At [89], the Tribunal found, having regard to its earlier findings in respect of the refugees convention criteria, that it did not accept that there was a real risk of significant harm if he were to returned to China for the purposes of complementary protection.

The present proceedings

1. These proceedings began with a show cause application filed on 13 January 2016.  There are two grounds in that application:

   1. I left China because I had been harmed. My land had been allocated to the Supply and Marketing Cooperative and was mortgaged to a bank, and I was forced to have a “male ligation”.  My local authorities will cause these terrible things happened because of my role in being the group leader in petitioning against the local authorities, and because I have two children.

2. The Tribunal member failed to take all my claims into account according to S91R of Migration Act 1958 because of the Tribunal member's bias against me.

(errors in original)

1. The application is supported by a short affidavit filed with it which I received as evidence.  I also have before me as evidence the court book filed on 8 March 2016. 

2. Only the Minister filed written submissions in accordance with orders made by a registrar. 

3. I invited oral submissions from the applicant today.  I explained the grounds of review in his application and invited comment from him.  The applicant focused his submissions on the issue of the number of his children.  He is concerned at the Tribunal’s finding that he only has one child, when he is adamant that he has two.  He is concerned more generally that he was disbelieved.  While he accuses the Tribunal of bias, it was apparent from the applicant’s submissions that he is merely strenuously opposed to the Tribunal’s findings.  He referred to the Tribunal being biased against the evidence, which I took as a submission that the Tribunal’s findings, particularly in relation to the number of his children, were not open on the evidence.  I have a different view. 

4. The applicant had before it information obtained by the delegate as well as the applicant’s evidence and claims.  There was inconsistency and the findings made by the Tribunal were open to it on the evidence before it.  There is nothing to suggest bias on the part of the Tribunal.  Further, the applicant was not able to point to any aspect of his claims that was overlooked by the Tribunal. 

5. The Minister properly raises an issue relating to the children claim that might hypothetically have raised an issue of the application of s.424A of the Migration Act 1958 (Cth) (Migration Act). That is because the applicant had claimed in his visitor visa application that he had one child, whereas in his protection visa application he claimed he had two.

6. That issue was addressed by the delegate in his reasons and the applicant provided the Tribunal with the delegate’s decision. The relevant information, therefore, came to the Tribunal via the delegate’s decision and, having been provided by the applicant, s.424A did not apply because of the exclusion in relation to information provided by the applicant.[14]  I otherwise agree with the Minister’s submissions. 

   [14] see s.424(3)(b)

Ground 1

1. Ground 1 merely restates the applicant's claims for protection and does not identify an error on the part of the Tribunal.  .

Ground 2

1. The second ground asserts the following:

   a)the Tribunal member failed to take all the applicant's claims into account for the purposes of assessing whether the applicant had a well-founded fear of persecution in accordance with s.91R of the Migration Act; and

   b)the Tribunal member's failure to take into account all of the applicant's claims was due to actual or apprehended bias.

Failure to consider claims

1. The Tribunal did consider the applicant's claims, which were that he feared harm due to his land resumption petition, because he had two children, and because of his religious beliefs. So much is evident from the summary of the Tribunal decision as summarised at [7]-[12] above.

2. Further, the Tribunal expressly had regard to the instances of harm that the applicant claimed to have occurred by reason of his involvement in the petition and/or because he had two children. The Tribunal considered the claims of “male ligation”;[15] harassment of his business;[16] refusal of property development application;[17]  questioning by local officials;[18] and damage of his wife's mah jong tables.[19]

   [15] at [6], [8], [41], [52], [54] and [76] of the Tribunal decision

   [16] at [38], [71] and [76]

   [17] at [39]

   [18] at [40] and [72]-[73]

   [19] at [42]-[44] and [80]

3. The applicant did not expressly claim that he feared harm because he made an application for a visa to the United States of America and the Tribunal did not consider whether the applicant faced a real risk or real chance of harm for this reason.

4. The Tribunal did not err by omitting to consider it.  In order for a jurisdictional error to be found on the basis that a Tribunal failed to consider a claim not expressly articulated, the claim must emerge clearly from the materials before the Tribunal.[20]  The finding should not be lightly made[21] and cannot depend on creative activity by the Court.[22]

   [20] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]

   [21] Ibid.

   [22] NAVK v Minister for Immigration [2004] FCA 1695 at [15]

5. In the present case, the Tribunal did have regard to the applicant's evidence that he had made a visa application to the United States and that he was told that the application would make him a target with Chinese authorities.[23]  However, it was not persuaded of the applicant's evidence that local officials or other people would know he applied for the visa or why he would be subjected to adverse action as a result.  It considered the applicant's evidence that he made an application to the United States to be “confused” in the context of the claims for protection.[24]

   [23] at [40] and [72]-[73]

   [24] at [73]

6. The Tribunal's reasons indicate that the evidence before it on this topic was deficient. It cannot be said a claim that the applicant feared harm because he had previously applied for a visa to the United States so clearly emerged on the material before the Tribunal, such that it can be said that the Tribunal erred by failing to consider it as a further claim for protection.

7. For the above reasons, the first aspect of Ground 2 fails to disclose an arguable case of jurisdictional error.

Actual or apprehended bias

1. The applicant's ground that the Tribunal failed to take into account the applicant's claims due to actual or apprehended bias necessarily fails if it is found that the Tribunal did in fact consider the applicant's claims.

2. Nonetheless, the Tribunal's decision discloses neither an actual nor apprehended bias. It is well established that bias is a serious allegation which must be substantiated by clear evidence[25] and there is nothing on the face of the decision record to support such an allegation.

   [25] Minister for Immigration v Jia (2001) 205 CLR 507 at 531 [69] per Gleeson J; 546 [127] per Kirby J

Evidence that the applicant had two children

1. The Tribunal did not err by failing to have regard to evidence. A failure to consider an item of evidence may demonstrate a jurisdictional error if: first, it is found that both the evidence was overlooked; and second, that it was of some import when regard is given to its cogency and its significance to the decision-maker's reasoning.[26]

   [26] Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [54], [56], [58]

2. At the second hearing, the applicant provided the Tribunal a Hukou (Household Register), which indicated that he had two children, a daughter and a son born on 10 June 2008.[27]  Despite this, the Tribunal found that the applicant did not have two children.[28]

   [27] see [58]-[59]; CB 179, CB 196

   [28] at [81]

3. It is clear from the decision record that the Tribunal did not overlook the disputed Hukou.

4. The Tribunal was appraised of the claim that the applicant had two children[29] and the various evidence, or lack thereof, provided in support of that claim.[30]  Indeed, the Tribunal expressly noted the existence of the disputed Hukou in its summary of the evidence before it[31] and its consideration of the applicant's claims.[32]

   [29] at [6], [8], [16], [41]

   [30] at [16], [48]-[49], [51]

   [31] at [58]-[59]

   [32] at [68]

5. The finding that the applicant only had one child,[33] was reached despite evidence to suggest that the applicant had two children. The Tribunal placed weight on the fact that the applicant had previously declared that he only had one child in a previous visitor visa application, in circumstances where the number of children was a “key aspect of his claims”.[34]  In addition, it was unimpressed with the applicant's explanation for the inconsistency in his evidence.[35]

   [33] at [81]

   [34] at [69]

   [35] see [68]-[69], [77]-[78]

6. Although the Tribunal did not go so far as to make an express finding that the Hukou was fabricated, the Tribunal commented that the applicant “handed up a copy of three pages from what he claimed was his Hukou”.[36]  When seen in the context of the overall finding that the applicant had “fabricated the claim to have two children in order to strengthen his claim to be owed protection”,[37] the Tribunal's comments suggest that it Tribunal dismissed the Hukou as fabricated evidence provided to substantiate a fabricated claim.[38]

   [36] at [58] (emphasis added)

   [37] at [81]

   [38] at [58]

7. The Tribunal chose not to place any weight on the Hukou. When presented with conflicting evidence relating to the number of children the applicant had, the weight afforded to the evidence was a matter of fact for the Tribunal and no error arises for this reason.[39]

   [39] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.

8. Further, the Tribunal is not obliged to refer to every piece of evidence or every contention by the applicant or to expressly grapple with any evidence contrary to its findings of fact.[40]

   [40] WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 at [46] per French, Sackville and Hely JJ

9. Accordingly, the Tribunal did not err by failing to have regard to evidence of the Hukou indicating that the applicant had two children for the reason that the evidence in question was not in fact overlooked.

Compliance with procedures

1. The Tribunal relied on material that the applicant had provided to the Minister’s Department in his previous offshore visitor visa application that he only had one child in rejecting the claim that he had two children.[41] The Tribunal was not obliged to provide particulars of that material to the applicant pursuant to an obligation under s.424A.

   [41] see at [68]-[68], [81]

2. The Minister accepts that the information suggesting that the applicant only had one child would, hypothetically, enliven the Tribunal's obligations under s.424A(1) as information which “in its terms” constituted a “rejection, denial or undermining” of the applicant's claim for protection, namely, that he has two children.[42]

   [42] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [18]

3. However, as noted above, it is apparent that the Tribunal sourced the material from the delegate's decision,[43] which the applicant submitted to the Tribunal in his application for review of the delegate's decision.[44] Accordingly, s.424A(3)(b) of the Migration Act applies to exempt the information from the Tribunal's obligations under s.424A.

   [43] at [68]

   [44] CB 93-109, in particular CB 99-100

4. Otherwise, the Tribunal complied with its procedural fairness obligations as codified under Division 4 of Part 7 of the Migration Act.

5. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

6. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant did not wish to be heard on costs.

8. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416 in accordance with the Court scale at the time the application was filed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 September 2016