ADK17 v Minister for Immigration
[2018] FCCA 424
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADK17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 424 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China for religious reasons and due to economic factors – applicant disbelieved – whether the hearing opportunity afforded the applicant was a fair one considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Abebe v The Commonwealthof Australia (1999) 197 CLR 510 Minister for Immigration v QAAH of 2004 (2006) 231 CLR 1 Randhawa v Minister for Immigration (1994) 52 FCR 437 SZBEL v Minister for Immigration (2006) 228 CLR 153 SZSOV v Minister for Immigration & Anor [2013] FCCA 949 |
| Applicant: | ADK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 83 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Zinn of Mills Oakley |
ORDERS
The application filed on 11 January 2017 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 $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 83 of 2017
| ADK17 |
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 22 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s initial written submissions filed on 9 November 2017.
The applicant is a citizen of China who arrived in Australia on a student visa on 24 October 2002.[1] He lodged a protection visa application on 1 September 2014,[2] in which he set out his written claims for protection.[3] The applicant claimed to fear harm on the basis of his father’s involvement with the illegal movement Almighty God (also referred to as Eastern Lightning). He claimed that his father joined Almighty God in 2007 and was subsequently arrested by police but was not detained as it was his first offence. The police warned his father to cease his involvement but he continued to do so and the applicant’s mother warned the applicant not to return to China. In 2014, the applicant’s home in China was raided by the police and they found material relating to Almighty God. The applicant’s father went into hiding and his mother was questioned about her husband’s whereabouts. The applicant claimed that after this incident, he “did not dare” return to China and that the police and the Chinese government “definitely” think he is part of Almighty God.[4]
[1] Court Book (CB) 46
[2] CB 1-28
[3] CB 19-22
[4] CB 20-21
The delegate
The applicant was invited to attend an interview with a delegate of the Minister scheduled for 22 June 2015,[5] but did not attend.[6]
[5] at CB 39-41
[6] CB 49
In a decision dated 24 June 2015, the delegate refused to grant the applicant a protection visa.[7] The delegate noted the applicant’s written claims were not “overly lengthy or detailed” and there was no documentary evidence provided in support. As the applicant did not attend the interview, the delegate found he did not have the opportunity to discuss with the applicant the various concerns he had with his claims[8] and was unable to be satisfied that the applicant’s claims were credible. The delegate found the applicant did not met the criteria for a protection visa.[9]
[7] CB 42-55
[8] CB 49
[9] CB 55
The Tribunal
On 16 July 2015, the applicant lodged an online application with the Tribunal to review the delegate’s decision,[10] and gave the Tribunal a copy of the delegate’s decision with that application.[11]
[10] CB 56-57
[11] CB 57; Item 7(a) of CB index
On 4 November 2016, the applicant was invited to attend a hearing scheduled on 1 December 2016.[12] On 2 December 2016, the applicant was invited to a rescheduled hearing on 22 December 2016,[13] which he attended.[14] At the hearing, the applicant raised a new claim that he would have difficulty finding employment and would not adjust easily to the socio-economic environment in China.[15]
[12] CB 66-67
[13] CB 76-78
[14] CB 82-85
[15] CB 89-90, [8]
On 23 December 2016, the Tribunal made a decision affirming the delegate’s decision to refuse the applicant a protection visa.[16] The Tribunal summarised the applicant’s claims and evidence,[17] and noted he had said he was sent to Australia to study in 2002 and after he matriculated he initially studied accounting but changed courses to study cookery because this “appeared to provide a cheaper and more certain pathway to permanent residency in Australia”. It also noted that despite his “high level of competency in English”, the applicant “did not apply for a protection visa for another seven years”.[18] The applicant also gave evidence that he and his mother never had or have any interest in Almighty God.[19]
[16] CB 88-94
[17] CB 89-91, [6]-[18]
[18] CB 89, [7]
[19] CB 89, [9]
The Tribunal identified “two key inconsistencies” in the applicant’s evidence.[20] First, the applicant told the Tribunal on at least two occasions how his father was jailed for two weeks by the police in 2006 or 2007. He initially said “two months” but later in the hearing corrected this to be “two weeks”. The Tribunal found this evidence directly contradicted the applicant’s original written claims[21] that his father was not detained as it was his first offence. Secondly, the applicant told the Tribunal that the police found “nothing at all” of note or concern when they raided his mother’s apartment in 2014.[22] Again, the Tribunal found this evidence was inconsistent with his original claims[23] that his home was raided and the police found “many books related to “Almighty God”, some poems, bibles and some advertising brochures”.
[20] CB 91, [13]-[14]
[21] at CB 20
[22] CB 91, [14]
[23] at CB 20
Further, the Tribunal noted the applicant gave evidence at the hearing that the authorities were aware that his father was residing with his parents and that the applicant did not suggest that his mother was or remained under any suspicion, was summoned to a police station or had been forced to divulge anyone’s whereabouts at the time.[24] The Tribunal asked the applicant how his father had managed to remain at large in the community, to which the applicant responded that his father had repeatedly tricked the authorities with false promises to abandon the cult. The Tribunal found the applicant was improvising his answers.[25]
[24] CB 91, [14]
[25] CB 91, [15]
The Tribunal also asked the applicant what his father might be doing now to be of concern to the police and the applicant said he did not know as he had not talked to his father. In addition, the applicant said that his mother had advised him not to talk to his grandparents, and he also claimed that his grandparents had not been harmed, arrested or detained for housing his father.[26]
[26] CB 91, [16]
The Tribunal also noted that it had put to the applicant that, according to his evidence, his father or family had not been bothered by the authorities since 2014, which might suggest that he too might be safe from harm in the reasonably foreseeable future. The Tribunal put to the applicant that it found his response that “he had no idea” was “vague” and made it hard for the Tribunal to find that he faced a real chance of persecution.[27]
[27] CB 91-92, [18]
The Tribunal accepted that the applicant’s parents had separated but not for the reasons claimed.[28] The Tribunal was not satisfied that the applicant’s claims about his father, Almighty God, the arrest in 2006 or 2007, or the 2014 raid on the family home were factual.[29] On the basis that the applicant’s evidence was “inconsistent, unsupported and vague”, the Tribunal found the applicant had fabricated his claims and found his oral evidence pointed “strongly to his having sought a protection visa to achieve a migration outcome that was not attainable through enrolling in cookery”.[30]
[28] CB 92, [19]
[29] CB 92, [20]
[30] CB 92, [20]
The Tribunal found that in the alternative it would have given weight to the fact that according to the applicant’s oral evidence, the authorities had only been interested in his father and not his mother or grandparents. Accordingly, it found the authorities would not impute the applicant himself to have any links to Almighty God and that he would not be harmed for any reasons of imputed religion or membership of a particular social group or any other Convention reason.[31]
[31] CB 92, [21]
The Tribunal did not accept that the applicant would have difficulty finding a job in China, let alone for the reasons claimed, and found his claimed fear of unemployment and adjusting to life in China did not involve a real chance of persecution in the reasonably foreseeable future.[32] The Tribunal was not satisfied that: the applicant faced a real chance of Convention-related persecution in China; his fear of harm was well founded; or he met the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[33]
[32] CB 92, [22]
[33] CB 92, [23]-[24]
Having found the applicant’s refugee claims had failed because they lacked credibility and noting the tests of “real chance” and “real risk” were the same, the Tribunal found his claims also could not succeed as claims against the complementary protection criterion in s.36(2)(aa) of the Migration Act.[34]
[34] CB 92, [25]-[29]
The present proceedings
These proceedings began with a show cause application filed on 11 January 2017. There are six grounds in that application:
1. I did not receive the request to attend interview before the required date for interview. Therefore, I did not have the opportunity to tell my story to the department. I appealed to AAT and look forward to the hearing.
2. AAT hearing only lasted for 25mins. While most of the time was spent on asking me questions. The time I used to answer questions was much less than that. I did not have opportunity to delivery my oral personal statement after that.
3. I have been in Australia for 14 Years. My best time in life was devoted to Australia. I study hard and work hard to seek a better future. However, immigration policy changed from time to time. I came close to a lot of opportunities, but finally they all passed me by.
4. It is unfair that AAT refused me without giving me the opportunity to provide oral evidence and present personal statement at hearing. I would like to speak more, but they did not allow me to do that.
5. My father was persecuted because of believing in Almighty God. Even though I was not in China, I was affected by him as well. I dared not to return to China in order to avoid being persecuted by the government.
6. If I return to China, I will be persecuted by the government again. I hope the Federal Circuit Court could consider about Chinese circumstance and do justice for me.
(errors in original)
The matter came before me for a show cause hearing on 16 November 2017. At that time, I took the view that Grounds 2 and 4 in the application were arguable, at least in abstract, and could readily be supported by evidence in the form of a transcript of the Tribunal hearing. I took the view that the remaining grounds of review did not raise any arguable case of jurisdictional error.
I ordered, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), that the Minister show cause why relief should not be granted in relation to Grounds 2 and 4 in the application. I provided the parties with the opportunity to file further submissions and evidence. Given the significance of the absence of a transcript in relation to Orders 2 and 4, I also ordered that, if the applicant did not file a transcript, then the application would be dismissed.
The applicant filed an affidavit on 15 December 2017 to which is annexed a transcript of the Tribunal hearing. He has therefore complied with the precondition I imposed for a final hearing in this case. The Minister has filed additional submissions. That was done on 16 February 2018.
I invited oral submissions from the applicant this afternoon. In particular, I invited him to take me to any parts of the transcript which he thinks might support Grounds 2 and 4 in his application. He was not able to point to any particular parts of the transcript, although he maintains a general concern that the Tribunal hearing was perfunctory and that he was, at various times, cut off.
Consideration
The transcript discloses on page 2, page 13 and page 14 that the applicant was advised three times to raise any claims or issues that he considered he had not had a sufficient opportunity to address. He did not raise any such matters. Before me, the applicant said that he did not have much at the time of the Tribunal hearing to support his claims, however he did not seek any further opportunity from the Tribunal to obtain further material.
On my analysis of the Tribunal transcript, the Tribunal hearing was a fair one, conducted in conformity with the requirements of s.425 of the Migration Act. I otherwise agree with the submissions of the Minister filed on 16 February 2018 in relation to Grounds 2 and 4 in the application.
Grounds 2 and 4
Ground 2 of the application states that the Tribunal hearing only lasted for 25 minutes; most of the time was spent asking the applicant questions and the applicant “did not have opportunity to [deliver] my oral personal statement after that”.
Ground 4 of the application states that it is “unfair” that the Tribunal refused the applicant without giving him “the opportunity to provide oral evidence and present personal statement at hearing”. The applicant also states that he “would like to speak more” but the Tribunal did not allow him to do that.
The applicant has not filed any amended application or written submissions that refer to or rely upon any relevant parts of the transcript to support his contentions in Grounds 2 and 4. Nor has he identified what he would have said to the Tribunal had he been given a further opportunity. For the reasons already outlined above, the transcript does not support the applicant’s complaints about the hearing and instead establishes that he was provided with a meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s.425 of the Migration Act. This is explored further below.
The transcript confirms that the length of the hearing was 00:31:58, but the length of the hearing alone does not establish that the applicant was not given a reasonable opportunity to be heard and to advance the entirety of his factual material and submissions.[35] In the present case, no jurisdictional error is established by the duration of the hearing because the transcript reveals that:
[35] SZHDI v Minister for Immigration & Anor [2007] FMCA 1595; DGL16 v Minister for Immigration & Anor [2017] FCCA 1776
a)the Tribunal discussed with and questioned the applicant about his background[36] and his claims for protection;[37]
b)at the commencement of the hearing, the Tribunal informed the applicant (with emphasis added): “And you’ll certainly have an opportunity to talk about your claims. If there are any claims or issues that you haven’t had an opportunity to raise please let me know at some stage in the hearing”;[38]
c)throughout the course of the hearing, the Tribunal asked the applicant to discuss his reasons for seeking protection. For example, the Tribunal asked the applicant:
i)“And what’s the reason for a protection visa?”.[39] The applicant responded that his dad was in trouble in China which caused trouble for his family and his mum was afraid that if he returned to China he would have “no hope” and “lose anything” because his parents spent all their money for the applicant to study in Australia;
ii)“So if you go back? Go ahead”.[40] The applicant responded that if he returned to China he would have nothing because his dad was in trouble and the police were searching for his dad for a long time. This was followed by a further exchange between the Tribunal and applicant in which the Tribunal questioned the applicant about his claims; and
iii)“Yeah and in the reasonably foreseeable future, what’s going on?” The applicant responded that he does not know because he hasn’t talked to his father for two years and responded to further questions by the Tribunal;[41]
d)towards the end of the hearing, the Tribunal said to the applicant: “Any other claims, issues? Any evidence you want to make in support of what are generally unsupported claims?” The applicant responded: “No”;[42]
e)at the end of the hearing, the Tribunal said: “I hear what you say and I’ve given you an indication of the framework within which I must work. At this stage I’m inclining to end the hearing if that’s alright?” The Tribunal also explained that, without giving the applicant any indication as to how the review application would go, that it was open to him to seek Ministerial intervention. The applicant responded: “I understand”.[43]
[36] pages 3-5
[37] pages 5-14
[38] page 2
[39] page 5
[40] page 6
[41] page 8
[42] page 13
[43] page 14
The transcript shows that the applicant was plainly afforded ample opportunity to present his oral evidence and any “personal statement” that he wished to advance in response to the Tribunal’s questions and more generally. The applicant responded to various questions put to him by the Tribunal and expanded on his claims for protection. Relevantly, the Tribunal expressly invited the applicant to provide any further evidence or raise any other claims or issues, but he declined. Accordingly, the applicant’s complaint that he was not allowed to “speak more” is unfounded. The Tribunal was not required to make the applicant’s case for him.[44] Nor is it obliged to act as cross-examiner or prompt and stimulate an elaboration which an applicant chooses not to embark on.[45]
[44] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 176
[45] SZMDB v Minister for Immigration (2008) 105 ALD 499 at [36]-[37]; SZBEL v Minister for Immigration (2006) 228 CLR 153 at [47]; Minister for Immigration v QAAH of 2004 (2006) 231 CLR 1 at [40]; Minister for Immigration v SCAR (2003) 128 FCR 553 at [36]
The transcript also confirms the applicant made no attempt to present further oral evidence (or to deliver a personal statement). Nor did he make any attempt to request further time to provide evidence in support of his claims, despite being put on notice that the credibility of his claims was in issue on the review.
The Tribunal ensured compliance with s.425 by alerting the applicant at the hearing to its credibility concerns and affording him the opportunity to give evidence and present arguments on those issues.[46] For example:
a)the Tribunal member explained[47] that he had to “look for a real chance of persecution” and notified the applicant that it considered his evidence was “vague”, as well as stating that the claims were “generally unsupported”. The applicant responded to these concerns and sought to clarify his evidence. He gave evidence that: if he returned to China it would be hard for him to get a job because of his father’s actions; his mother’s salary had been “cut off” and her life has been “totally ruined” for the last 10 to 15 years; and he was “very used” to the life in Australia and the situation in China will be “totally different”;
b)the Tribunal[48] informed the applicant in relation to his evidence that “some of this sounds a little bit implausible to me, and a little bit incongruous”. It also asked the applicant whether somebody had told him a story to help get him a visa. The applicant responded “no, no sir”. When the Tribunal further put to him that it seemed “far-fetched” that the applicant’s father was not in jail if he had repeatedly come up against the police between 2007 and 2014, the applicant responded “yes I know”;
c)when the applicant told the Tribunal that he wasn’t sure whether his father still believed in Almighty God, the Tribunal alerted the applicant that his uncertainty suggested a “lack of evidence”. The Tribunal put to the applicant that there was a “lack of evidence upon which to make a confident finding that there’s a real chance you’ll be persecuted”;[49]
d)the Tribunal invited the applicant to give further evidence in relation to his “generally unsupported claims”.[50] The applicant responded: “No”;
e)the Tribunal put the applicant on notice that: “On the information available it might be hard to make a decision in your favour”. The applicant responded: “Yeah I understand that, sir”.[51]
[46] SZBEL
[47] at page 9
[48] at page 11
[49] page 12
[50] page 13
[51] page 13
It is apparent that the Tribunal discussed with the applicant at the hearing the various concerns and doubts that it had with the credibility of his claims and the lack of supporting evidence. The Tribunal therefore took express steps to identify the dispositive issues on the review and to ensure the applicant had notice of them.[52] The applicant was given multiple opportunities to put forward his case and to respond to concerns raised by the Tribunal.
[52] SZBEL
The point at which the Tribunal sought to end the hearing was when the applicant commenced discussing his reasons for wanting to stay in Australia, which the Tribunal explained were not matters for international protection. The Tribunal[53] explained to the applicant that:
issues like getting used to life in China again, probably not… that’s probably not an issue for international protection…again the bar for protection, the bar for persecution is quite high and very specific. The same with complementary protection. There has to be a real risk of significant harm.
[53] at page 13
In response the applicant submitted that: his parents would be disappointed in him; and he had been in Australia for 15 years and wanted a family.[54] The Tribunal informed the applicant that these were not matters for international protection. The Tribunal did not err in concluding the hearing when it did. When the Tribunal indicated to the applicant that it proposed to conclude the hearing, it had already discussed the aspects of his claims and evidence that it wished to examine and he had declined an express opportunity to provide further evidence in support of his claims.
[54] pages 13-14
In these circumstances, there is nothing in the conduct of the hearing that supports the allegation that the applicant was denied a “real and meaningful” opportunity to participate in the hearing as required by s.425 of the Migration Act. The applicant was provided with a meaningful opportunity to give evidence and present arguments relating to the credibility of his claims, and the Tribunal was not required to go out of its way to ensure that he made the most of that opportunity.[55] It was for the applicant to advance whatever evidence or argument he wished to advance in support of his contention to be entitled to a protection visa. The Tribunal was then required to decide whether the claim was made out.[56] The Tribunal expressly and unequivocally invited the applicant to provide further evidence at the hearing about his claims but the applicant confirmed he had nothing further to say. The applicant makes no complaint in relation to the standard of interpretation at the hearing and none is apparent. There is no basis for the applicant’s complaint that he did not have an opportunity to provide oral evidence or that he was not allowed to “speak more”. The Tribunal complied with its obligations under s.425 of the Migration Act and no denial of procedural fairness is apparent.
[55] Minister for Immigration v MZAIV [2016] FCA 251 at [63]
[56] Abebe (1999) 197 CLR 510 at 576 at [187]
Neither is error apparent on any other basis. The Tribunal considered the applicant’s claims for protection but identified inconsistencies in his account and found that his evidence in other respects was vague and unsupported. In particular, the Tribunal’s findings that the applicant’s evidence contained two inconsistencies were plainly open to it on the available materials and provided a cogent basis to support its adverse credibility findings. On this basis, the Tribunal was not satisfied that the applicant’s claims were genuine. The Tribunal’s findings of fact regarding the applicant’s credit and the credibility of his claims were open to it on the available materials and for the reasons it gave.[57]
[57] Randhawa v Minister for Immigration (1994) 52 FCR 437
There is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to an applicant’s refugee claims when assessing his or her claims under the complementary protection provisions.[58] Nor does the brevity of the complementary protection findings of itself reveal any error.[59]
[58] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
[59] SZRMF v Minister for Immigration & Anor [2013] FMCA 180 at [12]-[14]; MZZKQ v Minister for Immigration & Anor [2013] FCCA 1634 at [26]; SZSOV v Minister for Immigration & Anor [2013] FCCA 949 at [43]-[44]
Conclusion
I conclude that the applicant has been unable to establish that the Tribunal decision is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,500. The applicant observed that this was a lot of money but it is below scale and, in my view, reflects a fair assessment of party-and-party costs in this case.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 February 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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