ADK17 v Minister for Immigration and Border Protection
[2018] FCA 1376
•28 August 2018
FEDERAL COURT OF AUSTRALIA
ADK17 v Minister for Immigration and Border Protection
[2018] FCA 1376
Appeal from: ADK17 v Minister for Immigration and Border Protection [2018] FCCA 424 File number: NSD 341 of 2018 Judge: RARES J Date of judgment: 28 August 2018 Legislation: Migration Act 1958 (Cth) ss 36, 425
Federal Circuit Court Rules 2001 r 44.12
Cases cited: ADK17 v Minister for Immigration and Border Protection [2018] FCCA 424 Date of hearing: 28 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 23 Counsel for the Appellant: The appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Mr White of Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 341 of 2018 BETWEEN: ADK17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
28 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s application for Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 22 December 2016 to affirm the Minister’s delegate’s decision not to grant him a protection visa: ADK17 v Minister for Immigration [2018] FCCA 424.
Background
The appellant is a citizen of China who arrived in Australia on a student visa on 24 October 2002. He was granted further student visas, the last one of which expired on 23 April 2007. In the meantime, he visited China for a little over a month in early 2006.
After his last visa expired, the appellant became an unlawful non-citizen until he lodged his claim for a protection visa on 1 September 2014. On 24 June 2015, the Minister’s delegate refused to grant the appellant a protection visa and he sought review in the Tribunal.
He appeared in the Tribunal on 22 December 2016 to give evidence and present arguments and later that day the Tribunal made its decision to dismiss his claim. The hearing before the Tribunal was recorded in a transcript that the appellant put before the primary judge in his affidavit of 14 December 2017 and appears to have lasted nearly 32 minutes in total.
In essence, the appellant claimed that in about June 2007 his father had joined the Almighty God Church in China and had become a pious and devout follower of that church. He claimed that on 7 October 2007, his father had been arrested by the local police for participating in church activity and subsequently ignored police warnings not to participate in activities of the church, causing many of his relatives and the family’s friends to lose touch, or not be involved, with his father and mother for fear of police retribution. He claimed that, when he contacted her by telephone, his mother kept telling him not to return to China because the Chinese government had made the Almighty God Church illegal. He claimed that he had lived in Australia with constant fear and anxiety because of the persecution suffered by followers of the Almighty God Church.
After a reported incident of a murder in a McDonald’s restaurant in China involving Almighty God followers on 27 May 2014, the appellant claimed to believe that his family was in danger again and that on 7 June 2014 a group of police had raided the family home, searched many books relating to the religion as well as poems, bibles and other advertising brochures. He claimed that his mother had been alone in the home at the time of the raid and that subsequently his father was dismissed by his employer and had to go into hiding from the police. He claimed that the police had forced his mother to tell them where his father was and where he (the appellant) was but she had not said anything and that, as a result of learning of these matters, he was afraid to go back to China because he would be persecuted.
The appellant did not attend at the interview that the delegate had made for him to elaborate on his claims which the delegate found were insufficient to make a finding that they were genuine or credible. Accordingly, the delegate was not satisfied that Australia had protection obligations either under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth).
The proceeding in the Tribunal
At the hearing before the Tribunal, the appellant, who speaks reasonably fluent English, was also assisted, occasionally, as he was before me, by an interpreter. He told the Tribunal that neither of his parents were in any form of detention at the time of the hearing. He told the Tribunal he did not wish to go back to China because of the problems that his father faced, the fear his mother held for him and the difficulty he would have in finding employment.
The Tribunal noted that the Almighty God Church was also known as the Eastern Lightning religion and that it had been labelled as an “evil cult” by the Chinese government. The appellant claimed that neither he nor his mother had ever had any interest in the Eastern Lightning religion.
The Tribunal said that, essentially, the appellant claimed to fear persecution because of his father’s religious affiliation and that he would be imputed with that religion as a member of a particular social group, being the family of his father.
The Tribunal found that there were two key inconsistencies in the appellant’s claims. First, he had stated twice to the Tribunal that his father had been jailed for two weeks by the police in 2006 or 2007 where he had made no such claim in his application for a protection visa and, secondly, contrary to what the appellant told the Department in his application, he had told the Tribunal that the police had found “nothing at all” of note or concern when they raided his mother’s apartment in 2014. The Tribunal also noted that, in his evidence, the appellant had told it that the police knew where his father was residing, namely, with the appellant’s paternal grandparents.
The Tribunal concluded that, while the appellant’s parents had separated, that had not been for the reasons he claimed, namely the impact of the father’s claimed adherence to the Almighty God or Eastern Lightning religion. The Tribunal was not satisfied that the appellant’s claims about his father, the Eastern Lightning religion, the alleged arrest in 2006 or 2007 and the 2014 raid on the family home were factual. It found that the appellant gave inconsistent, unsupported and vague evidence to it and that he had fabricated those claims. It found that the appellant’s oral evidence strongly pointed to his having sought a protection visa in order to achieve a migration outcome not attainable through enrolling in his cookery course for which he had held the student visas.
The Tribunal made an alternate finding that, on the basis of the appellant’s oral evidence, the Chinese authorities had only been interested in his father’s activities and not those of his mother or grandparents, and therefore would not impute to the appellant any links to the Eastern Lightning religion simply based on his father’s claimed adherence to it.
Accordingly, the Tribunal found that the appellant would not be harmed for reasons of imputed religion or membership of any particular social group or any other Refugees Convention related reason. It also did not accept that the appellant would have any difficulty in finding a job in China, let alone for the reasons that he claimed. It found that there was no real chance that the appellant would face persecution were he to return to China in the reasonably foreseeable future for any of the reasons the appellant claimed. The Tribunal concluded that he was not a refugee.
It also found that since his complementary protection claims relied on the same facts as his refugee claims, he could not succeed on the complementary protection ground because of his lack of credibility. Accordingly, the Tribunal was not satisfied that if the appellant were to return to China there was a real chance that he would suffer any relevant harm for the purposes of s 36(2)(aa).
The proceeding before the trial judge
The trial judge recorded that the proceeding below had originally commenced with an application for the appellant to show cause why it should not be dismissed summarily under
r 44.12 of the Federal Circuit Court Rules 2001. The appellant filed a show cause application that had six grounds. This came before his Honour on 16 November 2017. At that hearing, his Honour took the view that two of the grounds were arguable and could be supported readily by evidence in the form of a transcript. Those grounds were that, first, the Tribunal hearing lasted only for 25 minutes and that while most of the time had been spent on asking the appellant questions, the time he used to answer those questions was much less than that timeframe indicated and that he did not have any opportunity to give a personal statement; and secondly, it was unfair that the Tribunal refused to grant him a protection visa without giving him the opportunity to provide oral evidence or present his personal statement at the hearing because he had been cut off and not allowed to say things.
His Honour set those grounds down for a trial hearing, that led to the appellant producing the transcript to which I have referred.
At the final hearing on 23 February 2018, his Honour invited the appellant to take him to any part of the transcript that might support the two grounds on which he had permitted the appellant to proceed. His Honour recorded that the appellant was not able to point to any particular part of the transcript although he (the appellant) maintained a general concern that the Tribunal was perfunctory and that he had, at various times, been cut off.
I should note that today the appellant asserted that he had only received the appeal book from his migration agent yesterday afternoon, that he had had no time to prepare for today’s hearing and when I also invited him to identify any part of the transcript which supported his claims, he also was unable to do so.
His Honour then carefully reviewed the transcript noting, at various places in his reasons, portions of the transcript in which the Tribunal had given the appellant a proper opportunity to expand upon his claims. On a number of occasions the trial judge found that the appellant had had a real opportunity to participate in a hearing properly conducted for the purposes of s 425 of the Act. He found, and I agree, that the transcript did not support the appellant’s claims about the hearing and instead it established that the appellant had been 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 Tribunal’s decision as required by s 425. His Honour set out in his reasons detailed references to support those findings that disclose no error in the way in which his Honour approached the determination of the application before him.
This appeal
In his notice of appeal, the appellant set out three grounds, namely that, first, he applied for a review of the Tribunal’s decision but his Honour dismissed it; secondly, the Tribunal did not accept that he faced a real chance of persecution at the hands of the Chinese government and had not considered his real situation in China where Chinese government officials had persecuted him; and, thirdly, if he returned to China he would continue to be persecuted by the Chinese government, was very scared and asked that the Department give him a second chance to describe in more detail his experiences and provide it with more evidence.
Consideration
The first ground of appeal simply asserts what happened, namely that the trial judge dismissed the application. The second ground of appeal has no substance. As his Honour found, and as I agree, the Tribunal gave genuine, real and proper consideration to the appellant’s claims and arrived at factual conclusions rejecting them for grounds that reveal no jurisdictional error. The third ground appears to assert a new claim that the appellant had some way in the past been persecuted. That was not before the Tribunal. There is no basis on which that claim, whatever it meant and about which the appellant did not elaborate before me, could found a jurisdictional error in the ways in which the Tribunal considered his claims, or the trial judge dealt with his application for relief.
Conclusion
In my opinion, the appeal is without any substance whatsoever. For these reasons, the appeal must be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate:
Dated: 7 September 2018
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