ADB16 v Minister for Immigration
[2017] FCCA 1055
•19 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADB16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1055 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China – applicant not believed – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | ADB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 91 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2017 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Ms H Musgrove of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 91 of 2016
| ADB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 December 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s legal submissions filed on 12 May 2017.
The applicant, a citizen of China, arrived in Australia on 1 December 2013, holding a Higher Education Sector (subclass 573) visa[1].
[1] Court Book (CB) 1, 39, 42, 91
On 14 March 2014, the applicant applied for a protection (class XA) visa[2]. The applicant claimed to fear harm in China from corrupt government officials who had extorted money from him in the running of his wholesale food business[3]. On 10 September 2014, the delegate refused to grant the protection visa[4]. On 30 September 2014, the applicant applied to the then Refugee Review Tribunal for review of the delegate’s decision[5]. On 11 December 2015, the applicant appeared before the Tribunal to give evidence and present arguments[6] and on 21 December 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa[7].
[2] CB 44, 77
[3] CB 71
[4] CB 106
[5] CB 107
[6] CB 116
[7] CB 126
Tribunal’s decision
The Tribunal identified a number of concerns about the applicant’s credibility stemming from inconsistencies in his evidence regarding the relevant government agency at the hands of which he claimed to have suffered harm[8], goods being taken from his business[9], his expectations as to how his complaints would be treated[10], when he stopped working in the business and when the business ceased operating[11]. The Tribunal also identified difficulties with the applicant’s evidence regarding his intention to make a further complaint to authorities in August 2012[12] and the problems faced by the business after his release from custody[13].
[8] CB 128 [9]-[11]
[9] CB 129 [12]-[13]
[10] CB 129 [14]-[16]
[11] CB 130 [18]-[23]
[12] CB 130 [17]
[13] CB 131 [24]-[25]
In considering the identified discrepancies between evidence in the applicant’s written statement and evidence he gave at the hearing, the Tribunal considered the applicant’s claim that his written statement was an English translation of a document written by him in Chinese. However, the Tribunal was satisfied that the true reason for the identified discrepancies was not any error on the part of the person who prepared the written statement in English[14].
[14] CB 132 [26]
The Tribunal also identified inconsistences between evidence in the applicant’s student visa application and the claims advanced in his protection visa application. For the purposes of the review, the Tribunal accepted the evidence given by the applicant to the delegate that all of the information in his student visa application was false. This, however, did not lead the Tribunal to accept that the applicant’s claims for the purpose of the protection visa application were true[15].
[15] CB 132 [28]
The Tribunal’s cumulative concerns about the applicant’s credibility led it to find that he was not a witness of truth and that his account of events was false[16]. The Tribunal found that there was no credible evidence that the applicant had suffered harm of any kind in China or that the Chinese authorities sought to harm him. Because it disbelieved the only ground on which the applicant claimed protection (his alleged dealings with corrupt officials), the Tribunal also disbelieved any claim that he would oppose the Chinese government in any way[17].
[16] CB 132 [27]-[28]
[17] CB 132 [29]
The Tribunal found that there was not a real chance that the applicant would suffer serious harm in China[18]. Based on its anterior findings, the Tribunal also found that there was not a real risk the applicant would suffer significant harm[19].
[18] CB 132 [29]
[19] CB 132 [30]
The present proceedings
These proceedings began with a show cause application filed on 18 January 2016. The applicant continues to rely upon that application. The grounds in the application are:
1. Jurisdictional error was made.
My claim was doubted without substantive evidence and thus some reasoning was wrong.
2. My case was not considered fairly.
The Tribunal did not consider my claims properly and it ignored the danger I would face upon return to China.
I have before me as evidence the court book filed on 30 March 2016. The applicant denied receipt of the court book, but exhibit R1 establishes to my satisfaction that it was sent to him by express post to his nominated address for service on 31 March 2016.
I received as a submission the affidavit filed with the application. In that affidavit, the applicant says that he was persecuted by the government in China because he reported a corrupt official and he fears return to China for that reason. I invited oral submissions from the applicant this morning; he declined to make any. I explained that my view of the grounds he advanced was that they did not point to, let alone establish, any jurisdictional error. I informed the applicant that I considered that if he had nothing further to raise against the Tribunal decision, I would have to dismiss his application.
Indeed, an application in the form of the one before the Court would ordinarily have been listed by me for a show cause hearing. I cannot recall the circumstances in which the registrar came to list the matter for a final hearing today[20].
[20] Following my oral judgment my associate located an email from the Minister’s solicitors on 11 March 2016 which ventured the opinion that the application as filed disclosed an arguable case of jurisdictional error
I again invited submissions from the applicant before I made my decision in this matter. He had nothing else to say. The Minister’s submission deal adequately with the grounds of review advanced. I agree with those submissions.
The nature of the argument being advance in Ground 1 is not entirely clear. The Tribunal found that there was no credible evidence that the applicant suffered harm of any kind in China or that the Chinese authorities sought to harm him[21]. It is for the applicant to present his case to the Tribunal. The Tribunal’s inability to be satisfied on the basis of the material presented by the applicant is not demonstrative of jurisdictional error. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant[22]. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out[23].
[21] CB 132 [29], [30]
[22] Randhawa v Minister for Immigration (1994) 52 FCR 437, 451 per Beaumont J; Minister for Immigration v Guo & Anor (1997) 191 CLR 559, 596 per Kirby J; Prasad v Minister for Immigration (1985) 6 FCR 155, 169-70 per Wilcox J
[23] Selvadurai v Minister for Immigration (1994) 34 ALD 347, 348 per Heerey J
Insofar as this ground may be read as an attack on the Tribunal’s adverse credibility findings, those findings were open to the Tribunal on the material before it and for the reasons it gave namely, inconsistencies in evidence advanced by the applicant at various stages of his application. Adverse credibility findings do not require positive evidence; such findings may be made simply on the basis of disbelief of evidence because of surrounding circumstances[24]. Further, the Tribunal’s conclusion that the applicant was not credible, while amenable to judicial review, has been described as a finding of fact par excellence for the Tribunal[25].
[24] WAJS v Minister for Immigration [2004] FCAFC 139 at [17]
[25] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
Insofar as Ground 1 may be read as a “no evidence” argument, the applicant must show that there was no evidence at all upon which the Tribunal’s findings could have been based[26]. The decision record indicates that the Tribunal’s decision was based on the evidence provided by the applicant at various stages of the application, including orally and in writing. A “no evidence” argument cannot be made out.
[26] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Minister for Immigration v Al-Miahi (2001) 65 ALD 141 at [34] per Sundberg, Emmett and Finkelstein JJ
Ground 2 asserts that the Tribunal failed to consider the applicant’s risk of harm on return to China and contends more generally that the Tribunal failed to properly consider his claims. In the absence of any further particulars to substantiate the nature of the claimed jurisdictional error, this ground appears merely to cavil with the merits of the Tribunal’s findings. As such, it invites impermissible merits review[27].
[27] Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.
I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800. The applicant enquired about arrangements for payment but did not otherwise want to be heard on costs.
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 $5,800.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 May 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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