ADU16 v Minister for Immigration

[2017] FCCA 2262

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2262

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China as a Falun Gong practitioner – applicant not believed – Tribunal dealing with second protection visa application limited to complementary protection – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA

Cases cited:

Minister for Immigration v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration (2013) 212 FCR 235

SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226

SZVCHv Minister for Immigration & Anor [2015] FCCA 2950

Applicant: ADU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 116 of 2016

Judgment of: Judge Driver

Hearing date: 18 September 2017

Delivered at: Sydney

Delivered on: 18 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr D Eberl of Australian Government Solicitor

ORDERS

1. The application filed on 20 January 2016 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 $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 116 of 2016

ADU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 23 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 conveniently set out in the Minister’s legal submissions filed on 11 September 2017. 

2. The applicant is a national of the People’s Republic of China who arrived in Australia on a visitor visa on 30 August 2007[1].  On 12 September 2007, he applied for a protection visa on the basis of being a practitioner and teacher of Falun Gong[2].  That protection visa application was unsuccessful and the delegate’s decision was affirmed by a differently constituted Tribunal on 25 March 2008.  The applicant sought judicial review of that decision which was dismissed by this Court on 23 September 2008.

   [1] Court Book (CB) 14

   [2] CB 192

3. On 9 January 2014, following the Federal Court decision in SZGIZ v Minister for Immigration[3], the applicant made a second protection visa application, on the basis of his Falun Gong practice and teaching[4].

   [3] (2013) 212 FCR 235

   [4] CB 1

4. On 8 May 2014, the applicant attended an interview with the delegate. On 9 May 2014, the delegate refused to grant the protection visa for reason that the delegate could not be satisfied on the information before him that the applicant was a person to whom Australia has protection obligations under ss.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Migration Act)[5].

   [5] CB 50

5. On 2 June 2014, the applicant applied to the Tribunal for review[6].

   [6] CB 65

6. On 9 November 2015, the applicant attended a hearing before the Tribunal, accompanied by his migration agent[7].  At that time the applicant’s agent made a new claim that the applicant faced harm as a result of being a failed asylum seeker, and submitted information in support of the claim (not specific to the applicant) that the applicant’s protection visa claim may have been revealed to Chinese authorities[8].  The applicant was invited to attend a second hearing on 9 December 2015, following this Court’s decision in SZVCH v Minister for Immigration & Anor[9]  (SZVCH) (in which the Court found that the Tribunal erred by considering itself under a jurisdictional limitation preventing it from reviewing the delegate’s decision in relation to the s.36(2)(a) criterion).

   [7] CB 81

   [8] CB 182 at [22]

   [9] [2015] FCCA 2950

7. On the morning of the scheduled hearing, the Tribunal notified the applicant’s agent that due to a further decision of this Court (SZQTJ v Minister for Immigration & Anor[10] (SZQTJ), in which Judge Street found that SZVCH had been wrongly decided), it was no longer necessary to hold a second hearing “as the tribunal at the first hearing proceeded on the correct understanding of the law”.  The applicant’s agent responded, saying that the Tribunal was “not being fair by postponing the hearing without giving the applicant an opportunity to comment on the Court’s decision”.  The Tribunal agreed to re-instate the hearing and proceeded with the hearing on the afternoon of 9 December 2015.  At that time the applicant’s agent reiterated the claim that the applicant faced harm as a result of being a failed asylum seeker.  The applicant submitted further documents and submissions post-hearing.

   [10] [2015] FCCA 3226

Decision of Tribunal

1. On 23 December 2015 the Tribunal affirmed the decision under review[11].

   [11] CB 177

Falun Gong claims

1. The Tribunal had a number of credibility concerns with key aspects of the applicant’s claims, as follows:

   a)the applicant’s failure to demonstrate one of the five key Falun Gong exercises, or an understanding of two central aspects of the belief system of Falun Gong, was inconsistent with his claim to be a long term practitioner and teacher of Falun Gong of 300-400 people per year two to three times per week for three years[12];

   b)the applicant’s failure to undertake any public practice or involvement in Falun Gong in Australia was not consistent with the nature and extent of his practice in China[13];

   c)the applicant provided inconsistent evidence as to whether he was harmed, when he was detained, the length of detention and what happened when he was detained, as a result of being suspected of promoting and practising Falun Gong, which cast doubt on whether he was detained or was the subject of adverse interest by authorities[14]. The Tribunal’s reasons record that information from the applicant’s original protection visa application and differently constituted Tribunal decision were put to him in accordance with s.424AA of the Migration Act and that he requested additional time to respond in writing[15];

   d)the applicant’s claims regarding the circumstances of his release from detention were not plausible[16]; and

   e)that the applicant was unable to provide any documentary evidence or correspondence from his family to support his claims that his house was taken by authorities and he was denied social services due to his Falun Gong practice[17]. 

   [12] CB 185-186 at [40]-[45]

   [13]CB186 at [46]-[49]

   [14] CB 186-187 at [50]-[56]

   [15] CB 187 at [54]

   [16] CB 187-188 at [57]-[58]

   [17] CB 188 at [59]

2. On the basis of the above issues, the Tribunal was not satisfied that the applicant had ever been a practitioner or teacher of Falun Gong.  Accordingly the Tribunal disbelieved the applicant’s associated claims that he was detained, harmed and investigated in relation to Falun Gong, paid a bribe to obtain a passport, lost his house or was denied social benefits[18].

   [18] CB 188 at [60], 189 at [64]

3. The Tribunal accepted that the applicant was dismissed from his job as a result of having left the country, and that he may have difficulty being reinstated.  However the Tribunal was not satisfied that any such practical or financial difficulty would be for a Convention reason or would amount to significant harm for the purpose of the complementary protection criterion[19].

   [19] CB 189 at [66]

Failed asylum seeker claim

1. The Tribunal had regard to the documents and independent information submitted by the applicant’s agent in support of this claim, but was not satisfied that there was evidence which established a real chance of serious harm or a real risk of significant harm to the applicant as a result of the Chinese authorities knowing or assuming that the applicant had claimed asylum[20].

   [20] CB 190-191 at [67]-[73]

2. Ultimately, the Tribunal found that it could not be satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss.36(2)(a) or (aa) of the Migration Act[21].

   [21] CB 190 at [74]-[78]

The present proceedings

1. These proceedings began with a show cause application filed on 20 January 2016.  The applicant continues to rely upon that application.  The grounds in the application are:

   1. The member spent only 10 minutes considering my application under complementary protection provisions versus over an hour considering the refugee convention which was irrelevant.

   2.There is no statutory foundation to support the Member’s reasoning that if you fail to satisfy Convention Grounds you would directly [fail] to satisfy Complementary Provisions.

   3. The Member referred to two recent Federal Court decisions which I suggest that the application of those two cases are inappropriate as I don’t think these two cases are relevant.

   4.There are both unfair procedural errors and jurisdictional errors in my tribunal decision

2. The application is supported by an affidavit filed with it.  That affidavit in part asserted non-contentious facts, and in part was a statement of submissions.  The affidavit annexed documents which, as the Minister notes, also appear in the court book[22].  I received the affidavit, subject to drawing a distinction between asserted facts and submissions. 

   [22] CB 72-76, 107-109, 177-191, 128-139, 141-172

3. I also have before me as evidence the court book filed on 7 April 2016. 

4. I invited oral submissions from the applicant this morning.  He reiterated his claim that the Tribunal only spent a short amount of time on what he sees as the real issue, which was his claim for complementary protection.

5. As I explained to the applicant, the procedural history of this matter was somewhat complex.  He had originally claimed protection as a Falun Gong practitioner, but that claim had been rejected by the Refugee Review Tribunal in 2008.  Subsequently and consistently with the decision of the Federal Court in SZGIZ, the applicant became entitled to make a second application limited to the issue of complementary protection.  That application was rejected by the Minister’s delegate, who had dealt with both the Refugees Convention criterion and the complementary protection criterion.

6. The Tribunal conducted two hearings because of confusion over the legal question of whether the Tribunal was required to review the delegate’s decision in its entirety, or simply the issue of complementary protection.  Ultimately the Tribunal concluded on the basis of this Court’s decision in SZQTJ, that its consideration was restricted to the complementary protection criterion. Nevertheless and somewhat curiously, the Tribunal purports to make refugee criterion findings in its decision at [72] and [74][23].

   [23] CB 190

7. In my view, nothing turns on that and no issue has been raised by the applicant, because the Tribunal correctly found that its review was restricted to complementary protection[24] and the making of immaterial findings had no impact on the decision.  The Tribunal’s attention was focused on the applicant’s credibility.  The Tribunal found that the applicant’s claim to be a Falun Gong practitioner was not credible.  That credibility finding plainly impacted not just on a hypothetical consideration of the applicant’s claims under the refugees criterion, but also the actual consideration of those claims under the complementary protection criterion.

   [24] Minister for Immigration v SZVCH [2016] FCAFC 127

8. I see no error in the Tribunal’s approach in this regard. 

9. The applicant was also critical of the Tribunal’s use of information about Falun Gong derived from the Internet.  This appears to relate to the Tribunal’s analysis at [42] of its reasons[25].  There was in my view no jurisdictional error by the Tribunal in having regard to that information.  The applicant, through his agent, took the opportunity to make a post-hearing submission, but did not himself raise any issue about that Internet-based information.

   [25] CB 185

10. The applicant also asserted for the first time from the bar table, that at the Tribunal hearing, the presiding member became agitated with his migration agent and the applicant sought to make his own submission.  The applicant asserts that that request was peremptorily rejected by the Tribunal member.  The assertion is not supported by any evidence.  I asked the applicant if he had listened to the sound recording of the Tribunal hearings and he had not. 

11. The applicant was provided with time by the procedural orders made by a registrar to file and serve an amended application and additional evidence.  He has not taken up those opportunities.  I am not persuaded that I should grant the applicant an adjournment based on the bald assertion raised for the first time today by him.  I note that, after the first Tribunal hearing, the applicant was invited to provide further information or comments by 23 November 2015[26], and, as noted above, his agent made a further submission after the second Tribunal hearing. 

    [26] See CB 83

12. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced by the applicant. 

13. By Ground 1, the applicant alleges that the Tribunal did not spend enough time at the hearing considering the applicant’s claims under complementary protection.

14. Contrary to the applicant’s assertion, the Tribunal’s reasons disclose that it considered all of the applicant’s claims for protection.  As the Tribunal says at [10][27], “[t]he issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection.”  As I have already noted, it was the issue of the applicant’s credibility that appeared to be the focus of the hearing.  As noted by the Tribunal, the applicant’s credibility went to the core of the applicant’s claims against the visa criteria.  This was also explained to the applicant’s advisor at the second hearing[28].

    [27] CB 179

    [28] CB 179 at [15]

15. No jurisdictional error is made out by Ground 1.

16. By Ground 2, the applicant appears to assert that the Tribunal erred as, in rejecting the applicant’s claims on Refugees Convention grounds, it automatically rejected the applicant’s complementary protection claims.

17. No such reasoning or finding was made by the Tribunal.  In fact, contrary to what is asserted in this ground, the Tribunal’s reasons disclose that it separately considered the applicant’s claims against the Refugees Convention[29] and complementary protection criteria[30].  The Tribunal also expressed its correct understanding of criteria at [5] and [7][31]:

    …the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee criterion, or on other ‘complementary protection grounds

    …If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of protection visa if…there is a real risk that he or she will suffer significant harm: s 36(2)(aa)…

    [29] Eg. CB 190 at [74]

    [30] Eg. CB 190 at [75]

    [31] CB 178

18. No jurisdictional error is made out by Ground 2.

19. By Ground 3, the applicant contends that the Tribunal erred in referring to two “Federal Court” decisions.

20. Insofar as this ground complains about the Tribunal’s consideration of this Court’s decisions in SZVCH or SZQTJ, the Tribunal considered those decisions solely in relation to what was a live issue at the time, namely, the scope of the Tribunal’s jurisdiction following SZGIZ.

21. No jurisdictional error is made out by this ground.

22. By Ground 4, the applicant asserts that there are both “unfair procedural errors and jurisdictional errors” in the Tribunal decision.  In my opinion, this ground is no more than a mere assertion of procedural and jurisdictional error and, absent particulars, cannot succeed.

23. I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

24. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $6,825, which was the scale amount prescribed at the time this application was filed.  The applicant did not wish to be heard on costs. 

25. I will order that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,825.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       22 September 2017