AEF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3503
•23 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
AEF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3503
File number(s): SYG 104 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 23 December 2020 Catchwords: MIGRATION – application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether Tribunal considered applicant’s claims – whether Tribunal’s findings on the basis of which it affirmed decision were reasonably open on the material before it – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 425, 476 Cases cited: AAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 310
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Number of paragraphs: 31 Date of hearing: 11 December 2020 Place: Sydney First Applicant: Appeared in person, and as litigation guardian of the second applicant, by telephone, assisted by an interpreter Solicitor for the First Respondent: Mr S Valliappan of Minter Ellison Lawyers, by telephone ORDERS
SYG 104 of 2017 BETWEEN: AEF17
First Applicant
AEG17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
23 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first applicant pay the first respondent’s costs set in the amount of $5,600.
REASONS FOR JUDGMENT
INTRODUCTION
The applicants apply for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).
BACKGROUND
The first applicant (applicant) is a citizen of the People’s Republic of China. The applicant entered Australia in December 2007 as the holder of a student visa. The applicant’s student visa was cancelled in December 2009, after which she remained in Australia. The applicant applied for a Protection visa on 23 December 2013. At that time the applicant was pregnant with the second applicant.
CLAIMS FOR PROTECTION
The applicant stated her claims for protection in a statement that formed part of her application for a Protection visa. The applicant there claimed as follows:[1]
[1] CB27-28
(a)The applicant was born in the countryside of Fujian Province. All members of the applicant’s family are disciples of I-Kuan-Tao (also referred to as “Yiguan Dao”). The applicant began to pursue the Tao at her family’s home shrine; and the applicant was baptised when she was 8 years old.
(b)The local government did not sanction the applicant’s family’s faith. When the applicant was in primary school the government shut down the applicant’s family’s home shrine, confiscating the incense pot and scriptures. The local government declared the applicant’s family’s shrine a cult, and “swore to liquidate it”.
(c)The applicant’s family’s shrine had connections with the shrines in Taiwan; and the applicant and her family invited masters from Taiwan to preach Tao. Two such masters came to the applicant’s home, and the applicant listened to their sermons. This was reported, and the applicant’s family’s home was searched by the police. The applicant was detained for one day.
(d)The applicant’s parents persisted in pursuing Tao, and they were arrested several times. The applicant’s father was sent to be re-educated though labour for six months. The local government informed the applicant’s school that the applicant had a family background of cult disciples, and instructed the school to keep the applicant away from the cult.
(e)When the applicant was in middle school, her school warned the applicant not to be arrested by the police again, otherwise she would be expelled. The applicant’s parents tried to keep the applicant away from religious activities.
(f)When the applicant came to Australia in 2007 she could not find an I-Kuan-Tao shrine in Australia. The applicant therefore pursued the Tao through the internet and by listening to online sermons.
(g)In 2012 the applicant’s parents were reported practising Tao at the home shrine. The police raided the applicant’s family’s home shrine, and the applicant’s parents were detained for three days. When the applicant learned about these events, she immediately posted the news on her blog, but her blogs were soon deleted by the cyber-police. Sensing danger, the applicant stopped sending “such news”.
(h)In 2013 the applicant heard there existed a shrine in Sydney. The applicant attended the shrine and she decided to pursue the Tao there.
(i)After the applicant’s parents were released, they did not have genuine freedom. The local government sent police to “spot inspects” the applicant’s family’s home. The applicant’s parents were beaten and injured by the security police.
(j)The applicant does not dare to go back to China because she is sure she will face a dangerous situation. The applicant wants to remain in Australia to pursue her faith.
TRIBUNAL’S REASONS
The Tribunal did not accept the applicant or her family practiced Yiguan Dao in China. The Tribunal instead found the applicant began to associate with Yiguan Dao for the first time in 2013 to support her application for protection in Australia,[2] and that she had concocted her claims.[3] The Tribunal relied on the following matters:
(a)The applicant did not apply for protection until six years after she arrived in Australia, and four years after she became an illegal immigrant.[4]
(b)The applicant had no contact with other Yiquan Dao practitioners in Australia until six years after she arrived in Australia, and about one month before she applied for a Protection visa.[5]
(c)The Tribunal found the applicant’s evidence regarding her beliefs and involvement with Yiquan Dao to be unconvincing,[6] and some of her evidence, particularly about the circumstances of her claimed baptism, was inconsistent.[7]
(d)The Tribunal found the applicant’s evidence about the problems she claimed her family faced was confused and unconvincing, and contained significant inconsistencies.[8] The Tribunal referred, among other things, to inconsistent evidence the applicant gave about the period for which she claimed her father had been detained.
[2] CB242, [21]
[3] CB244, [36]
[4] CB242, [22]
[5] CB242, [24]
[6] CB242, [26]
[7] CB243, [27], [28]
[8] CB243, [32]
Although the Tribunal accepted the applicant attended some classes at a Yiguan Dao temple in Australia since late 2014, the Tribunal did not accept the applicant is a genuine or committed follower of the faith.[9] The Tribunal relied on the following matters:
(a)The Tribunal did not find the applicant to be a generally truthful or credible witness.[10] The Tribunal relied on the applicant’s evidence that she provided false evidence to obtain her student visa, and also to its finding that the applicant had concocted her claims regarding her and her family’s beliefs and problems in China.[11]
(b)When the Tribunal asked the applicant what her intentions were when she arrived in Australia, the applicant said she intended to remain permanently but, if she were to hold a visa that allowed it, she would return to China to visit her parents.[12]
[9] CB244, [37]
[10] CB244, [38]
[11] CB244, [38]
[12] CB245, [39]
In light of these findings, the Tribunal was not satisfied the applicant has a well-founded fear of persecution for any reason, and was also not satisfied the applicant met the requirements of the complementary protection criterion provided for by s.36(2)(aa) of the Act.
The Tribunal also considered the position of the second applicant. The Tribunal referred to the applicant’s evidence that, if she returned, she intended to register the second applicant, but she would be subject to the payment of a social compensation fee which she will be unable to pay.
(a)The Tribunal accepted the applicant would be liable to pay a social compensation fee in relation to the second applicant, but it was satisfied this would not constitute discrimination because the liability to pay such a fee is the result of the normal operation of the law.[13] The Tribunal did not accept the applicant’s claim that she would be unable to pay the social compensation fee in relation to the second applicant. The Tribunal relied on a finding that the social compensation fee is set in relation to local income, and it can be paid by instalments over three years.[14]
(b)The Tribunal accepted the applicant might be subject to some gossip because she had the second applicant out of wedlock. The Tribunal was not satisfied, however, that this would amount to serious or significant harm.[15]
[13] CB246, [46]
[14] CB247, [53]
[15] CB246, [47]; CB247, [54]
In light of these findings, the Tribunal was not satisfied the second applicant met the criteria provided for by s.36(2)(a) and s.36(2)(aa) of the Act.
GROUNDS OF APPLICATION
The applicants, who are not legally represented, rely on the grounds set out in the application. The applicant also made a number of submissions at the hearing before me. I propose first to deal with the grounds stated in the application, and then refer to the submissions the applicant made to the extent their substance is not reflected in the grounds stated in the application.
Grounds of application
The grounds of application may be divided into two sections. One section appears under the heading “The Grounds of my Appeals to the Federal Court” where the applicant submits the Tribunal neglected a number of facts.
Delay in applying for Protection visa
The first is the applicant’s reasons for failing to lodge an application for a Protection visa until six years after she arrived in Australia. The applicant repeats the matters the Tribunal records the applicant said to explain why she had not applied for a Protection visa until six years after she arrived in Australia. The applicant states she had no choice but to worship at home rather than in a public space; she seldom surfed the internet or English websites due to her limited language ability; and the applicant was unable to find information until she was introduced to a “live temple” in Sydney. The applicant submits the Tribunal’s refusal to accept her explanations were based on speculation, and on hypothetical and metaphysical matters.
I take this this part of the grounds of application to claim the Tribunal acted unreasonably or irrationally in not accepting the applicant’s explanation for not lodging her application until six years after she entered Australia. The Tribunal identified in its reasons the explanation the applicant gave. The Tribunal recorded that in response to its question why it had taken the applicant so long to apply for a Protection visa the applicant said she wanted to be a student and had not been able to locate a temple; when the Tribunal put to the applicant that this did not explain the delay the applicant said she had wanted to make money and continue studying, and she did not want to take advantage of her religion; and that after the Tribunal informed the applicant that it had a number of concerns about the applicant’s claims, including her failure to apply for protection for six years, the applicant said she was aware Christians could apply for protection, but she did not know this was possible for people who believed in Yiquan Dao.[16]
[16] CB242, [22]
It was reasonably open to the Tribunal to consider that the applicant’s not applying for a Protection visa until six years after she entered Australia was a matter that weighed against the applicant’s claims she believed in and had practiced Yiquan Dao in China and that she feared harm because of that belief and practice;[17] and it was reasonably open to the Tribunal not to accept the applicant’s explanation for not applying for protection until six years after she entered Australia.
[17] See AAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 310, at [28], where White J said: “it is not uncommon for a delay in the making of an application for refugee status to be regarded as a matter bearing on the genuineness of a claimed fear of persecution”.
This part of the applicant’s claims, therefore, fails.
Applicant’s understanding of Yiquan Dao
The second fact the applicant submits the Tribunal neglected relates to the applicant’s understanding of Yiquan Dao. The applicant submits “there must be a qualification issue existed [sic] amid the interpretation process given by the interpreter in hearing”. The applicant submits the questions the Tribunal asked of the applicant and the response to those questions were not “explicitly and properly interpreted”. The applicant says she noticed that “some of the questions given were not so clear and specific to my understanding”.
The immediate difficulty with this part of the applicant’s claims is that it does not identify the questions the Tribunal asked and the answers the applicant gave which the applicant claims were not correctly interpreted. For that reason alone, this part of the applicant’s claims fails. Further, the transcript is not in evidence, and there is no expert evidence to support the applicant’s claims.
Applicant’s parents
The third fact the applicant submits the Tribunal neglected relates to the applicant’s “parents’ faith and prosecution [sic] in China”. The applicant submits that, because of her poor memory and nervousness, it was hard for her to recall all the details; the Tribunal failed to consider the applicant’s explanations; the Tribunal’s “judgment of inconsistence [sic] was wrongly dominant and non-persuasive”; the Tribunal rashly and unreasonably turned down the applicant’s explanations; the Tribunal did not require the applicant to provide more evidence; and the Tribunal did not itself undertake further enquiries.
This part of the applicant’s claims is directed to paragraphs 32 and 33 of the Tribunal’s reasons. In paragraph 32 the Tribunal found the applicant’s evidence about the difficulties faced by her parents was confused, unconvincing, and contained significant inconsistencies. In paragraph 33 of its reasons the Tribunal referred to the applicant’s explanation for not having stated to the Tribunal that her father had been detained for six months when she had made that claim to the delegate, and had claimed in her statement that her father had been sent for re-education for six months. The Tribunal referred to the explanation the applicant had given, namely, that that she had forgotten to mention her father had been sent for labour education, and also to the applicant’s stating in response to further questions from the Tribunal that “there were too many questions”.
It was reasonably open to the Tribunal to find, as it did, that the applicant had given inconsistent evidence; that the inconsistent evidence related to an important aspect of her claims, and that the inconsistencies weighed against the Tribunal’s accepting the applicant’s claims and her credibility in general. The Tribunal, acting reasonably, was not bound to accept the applicant’s explanation for the inconsistencies; and it was reasonably open to the Tribunal not to accept the applicant’s explanation. Although it did not expressly so state, I find the Tribunal did not accept the applicant’s explanation because it expected that, had it been true, the applicant’s father’s being detained for six months is an event the applicant would not have forgotten to mention.
Finally, the Tribunal did not have any duty, at least not in the circumstances of this case, to itself undertake further investigations, or request the applicant to give further evidence. The Tribunal gave the applicant a fair opportunity, as s.425 of the Act required it to do, to give evidence and present arguments. As has been held, “it is for the applicant for a protection visa to establish the claims that are made”;[18] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[19] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[20] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[21]
[18] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, at [40]
[19] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, at 576 (Gummow and Hayne JJ)
[20] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, at [78] (Kirby J)
[21] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263, at [58] (Black CJ, French and Selway JJ)
This part of the applicant’s claims, therefore, also fails.
Failure to consider documents
This part of the applicant’s claims is directed to the documents the applicant submitted in support of her claims by email sent on 11 August 2016.[22] The documents include a statutory declaration by a person that stated the applicant began learning Tao in 2014. The applicant submits the Tribunal did not investigate and made no enquiries in relation to these documents.
[22] CB191-208
The Tribunal referred to the documents the applicant provided, but found they went no further than confirm that which the Tribunal had accepted, namely, that the applicant attended Yiguan Dao services in Australia since 2014.[23] For reasons I have already given, the Tribunal was not required to undertake any enquiries in relation to the documents the applicant provided, or in relation to the applicant’s claims that she believed and practised in Yiguan Dao.
[23] CB245, [41]
The applicant also claims the Tribunal’s decision is grounded on “misunderstanding or prejudiced misjudgments”. This appears to be a claim for actual or apprehended bias, or both. The claim, however, is unsupported by any particulars, and for that reason cannot succeed. In any event, I am not satisfied there is anything in the material before me that could give rise to any arguable case of actual or reasonable apprehension of bias.
This part of the applicant’s claims also fails.
Grounds of application – second section
The second section of the grounds appears under the heading “The Grounds of the Application are”. This part of the applicants’ grounds goes no further than appealing to the merits of the applicant’s claims for protection. This Court does not have jurisdiction to determine whether the applicants are entitled to protection. The Court’s jurisdiction is limited to determining whether, on the grounds advanced by the applicants, the Tribunal has made a jurisdictional error.
SUBMISSIONS AT THE HEARING
At the hearing before me the applicant made the following submissions:
(a)The Tribunal failed to carefully and comprehensively take into account that if the applicant returns to China she will be persecuted because Yiguan Dao has been denounced as a religion since 1953, and its practitioners have been subject to significant crackdowns, and persecution.
(b)The Tribunal failed to take into account the applicant’s truthfulness of her beliefs in Yiguan Dao.
(c)The Tribunal did not accept the authority of the support letter she submitted (by which I understand the applicant to intend to mean the statutory declaration to which I have already referred).
These submissions do not disclose any jurisdictional error. They go no further than expressing disagreement with the Tribunal’s findings on the merits. As I informed the applicant at the hearing, this Court does not have jurisdiction to determine whether the applicant is entitled to protection; that is a matter for the Minister or his delegate and, on review, for the Tribunal to determine.
DISPOSITION AND COSTS
The applicant has not succeeded on any of the grounds and submissions on which she relies. I therefore propose to order that the application be dismissed.
The Minister applies for costs, and an order that the costs be set in the amount of $5,600. I explained to the applicant the Court has power to order that an unsuccessful party pay the legal costs of the successful party, and the Court usually orders that the unsuccessful party pay the costs of the successful party. The applicant made no submission against my ordering that the applicant pay the Minister’s costs set in the amount of $5,600, if the Minister were to succeed.
There is no reason why costs should not follow the event. I also propose to order, therefore, that the applicant pay the Minister’s costs, and that those costs be set in the amount of $5,600, being an amount I am satisfied is reasonable.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 23 December 2020
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