ACV16 v Minister for Immigration

[2016] FCCA 1154

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACV16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1154

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the decision of the Tribunal was illogical or irrational – real risk test – whether the Tribunal took irrelevant country information into account – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: ACV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 83 of 2016

Judgment of: Judge Street

Hearing date: 9 May 2016

Date of Last Submission: 9 May 2016

Delivered at: Sydney

Delivered on: 9 May 2016

REPRESENTATION

Counsel for the Applicant:  Mr B Zipser

Solicitors for the First Respondent: Mr M Glavac
Clayton Utz

ORDERS

1. Leave be granted to the applicant to rely on the amended application annexed to the counsel for the applicant’s submissions dated 29 April 2016, and the filing of any further documents in this regard is dispensed with.

2. The show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) is dispensed with.

3. The applicant’s amended application for judicial review of a decision of the second respondent is dismissed.

4. The applicant pay the costs of the first respondent fixed in the amount of $3,436.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 83 of 2016

ACV16

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 21 December 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant is held to be a citizen of China. The applicant arrived in Australia on 22 June 2004, travelling on a valid Chinese passport issued on 9 March 2004. The applicant made his first claim for protection on 22 July 2004.

2. That application was refused by the department on 23 September 2004, and the Tribunal affirmed the department’s decision on 12 January 2005.  The applicant lodged his second application for protection on 27 November 2013 on the grounds of complementary protection consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The applicant appeared before the Tribunal on 3 September 2015 and 8 December 2015 to give evidence and present arguments, and was assisted by an interpreter.

3. After the hearing, the applicant lodged a further statement, dated 12 December 2015, acknowledging the departure from the circumstances that he advanced in his first claim for protection.  In substance, the applicant claimed to fear harm in China as a result of being a Falun Gong practitioner.  At the hearing before the Tribunal, the applicant recounted events different to the events that he had first advanced in respect of the circumstances in which he left China.  The Tribunal made adverse credibility findings and did not accept that the applicant was involved in the practicing of Falun Gong in China. 

4. It was in those circumstances that the Tribunal found that the applicant did not meet the criteria under s.36(2)(a) or under s.36(2)(aa) of the Migration Act 1958, and found on the totality of the evidence it did not accept that there is a substantial ground for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, he faces a real risk of significant harm. 

5. Counsel for the applicant relied upon an amended application which identified the following grounds:

   1. A critical issue before the Tribunal concerned passport and border controls in China in 2004. The Tribunal relied on information in country reports prepared in 2015 concerning passport and border controls in China in or shortly before 2015 in order to determine the position in 2004. In the circumstances:

   a) The Tribunal did not have evidence before it concerning passport and border controls in China in 2004 (in contrast to passport and border controls in China in 2015). Therefore the Tribunal made its decision based on no evidence which is a jurisdictional error.

   b) It was illogical or irrational for the Tribunal to make findings on passport and border controls in China in 2004 based on country information concerning the controls in 2015. This is a jurisdictional error.

   c) The Tribunal, as part of its inquisitorial function, ought to have located country information concerning passport and border controls in China in 2004. The Tribunal's failure to obtain this information was a jurisdictional error.

6. The argument advanced on behalf of the applicant was either a “no evidence” ground or an illogicality and irrationality ground in respect of the Tribunal’s reasoning concerning the applicant’s ability to leave China on a valid passport.  Relevantly, the Tribunal identified two 2015 reports.  The Tribunal identified from one of those reports, being the thematic report, that it indicated practitioners who were already known to authorities, or who have overtly engaged in behaviour of a particular type, would find it very difficult to obtain a passport to leave China.  The Tribunal made reference to the applicant’s claims advanced before the current Tribunal, that is, a brother had arranged to have his name removed from the banned list in order for him to be able to depart China.

7. The Tribunal said that it noted that the applicant had received a passport and left China without difficulty, and that was inconsistent with the information referred to in the 2015 thematic report in referring to Falun Gong practitioners having difficulty in obtaining a passport.  In evaluating the applicant’s credit the Tribunal returned to the applicant’s explanation as to his ability to leave China on a passport in his own name to come to Australia, and that he claimed one of his brothers had been able to have his named removed from a banned list to enable him to travel.

8. In the present application for protection the applicant claimed that his employer had helped him obtain the passport and that his brother had caused the applicant’s name to be removed from a banned list so that he could travel.  In the written submissions provided after the hearing, the applicant did not refer to the involvement of his brother and referred to a different person helping to delete the arrest warrant temporarily online so that he could travel.  The Tribunal noted that the applicant had told the current Tribunal that he did not know how his employer had been able to obtain a passport for him. 

9. The Tribunal again turned to the thematic report dated 2015 and information in relation to Falun Gong practitioners that indicates that known practitioners would be unlikely to obtain a passport to leave China.  The Tribunal referred to the applicant’s evidence that was he on a bond and that he was under investigation in relation to a 2002 incident, yet in essence, or by implication, still under investigation.  The applicant in his written document dated 12 December 2015 claimed he was effectively on bail awaiting trial in China at the time he left China.  In that regard, the Tribunal said:

   That claim is not consistent with the applicant being granted a passport and being allowed to leave China to travel to Australia.

10. The Tribunal referred to having considered the totality of the applicant’s evidence and claims that he was a Falun Gong practitioner.  The Tribunal made reference to having had regard to country information that had been referred to elsewhere in the Tribunal’s reasons.  The Tribunal then said:

    This information strongly suggests that the applicant would have been very unlikely to have been issued with a passport or allowed to leave China if he was under suspicion of being a Falun Gong practitioner, and, as he claimed, essentially on bail and awaiting trial because of Falun Gong activities.

11. The Court was taken to both reports dated 2015 and, in particular, in the thematic report, para.1.1, which referred to the report providing DFAT’s best judgment and assessment at the time of writing.  The Court was also taken to para.330, which in the opening sentence provides as follows:

    Falun Gong practitioners who are committed to their faith and who are already known to authorities, or who have overtly engaged in behaviour considered to be politically sensitive, would likely find it very difficult to obtain a passport to leave China.

12. Counsel for the applicant contended that the 2015 report was not capable of being treated as evidence to support the findings made as to that information and its application in 2004 when the applicant left China.  Counsel for the applicant properly drew the Court’s attention to the delegate’s decision that identified country information going back to 2001 supporting Chinese authorities checking all outgoing passengers against an alert list.  The thematic report of 2015 provided information not just as at the date of the report, but of a historical kind. 

13. The information concerning the difficulties that Falun Gong practitioners faced in China and extending to the difficulties in relation to the obtaining of a passport was not time referenced to 2015.  The section of the report addressing Falun Gong commences from the historical perspective of 1992.  Counsel for the applicant also took the Court to the material in the country report dated March 2015 which had a section headed “Passports” and did refer to the passport law of the People’s Republic of China of 2006.

14. It is common ground that it was the substance of that report that was the source of the Tribunal’s reference to the information in the DFAT report as to the difficulty that Falun Gong practitioners were likely to face in obtaining a passport.  The solicitor for the first respondent referred to the Tribunal’s reason and in particular, that the Tribunal had before it the files relating to the applicant together with the information available to it from a range of sources.  That country information that was before the delegate of itself was evidence to support the finding and reasoning of the Tribunal in respect of the applicant’s departure from China using a valid passport and the difficulties that might have been expected if he was, in fact, a Falun Gong practitioner, the subject of a bail application at that time.

15. Further, there is nothing in the structure and content of the DFAT thematic report that supports the assumption in the applicant’s argument that it should be construed as having no application to events in 2004.  Whilst I accept that there is an 11 year time span in relation to the writing of that report, this was a matter in respect of which it is clear the Tribunal was well alive by reason of the multiple references to the departure in 2004 and the multiple references to the 2015 report.  The 2015 report was evidence upon which the Tribunal could make the findings referred to in respect of the applicant’s departure in 2004 and the no evidence ground is not made out.

16. Insofar as the argument was advanced on the basis of the application of the 2015 report being illogical or irrational, the reasons of the Tribunal made clear the applicant’s explanation as to the removal of his name from a list and in those circumstances it was open to the Tribunal to make adverse credibility findings in relation to the applicant’s claims and evidence by reference to his ability to leave China on a valid passport.

17. The assertion by the applicant that he was on bail at the time in his claim before this Tribunal was a matter that identified an evident and rational justification for the adverse credibility findings made taking into account the 2015 report.  Further, I find that the Tribunal did appreciate, on a fair reading of its determination, that it was applying the 2015 report to the 2004 events and that there was no failure by the Tribunal to properly exercise its jurisdiction.  Ground one fails to make out any jurisdictional error.  The amended application is dismissed.

18. The Court notes that although the matter was listed for a show cause hearing, the grounds of the application identified by counsel for the applicant raised a sufficiently arguable case to warrant dispensing with a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 and the Court heard this matter as a final hearing.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 May 2016