Aeh17 v Minister for Immigration

[2017] FCCA 2812

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEH17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2812

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424AA

Cases cited:

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

Minister for Immigration v SCAR (2003) 128 FCR 553

Perera v Minister for Immigration (1999) 92 FCR 6
Singh v Minister for Immigration (2001) 115 FCR 1

First Applicant: AEH17

Second Applicant: AEI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 106 of 2017

Judgment of: Judge Driver

Hearing date: 16 November 2017

Delivered at: Sydney

Delivered on: 16 November 2017

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms G Doyle of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 106 of 2017

AEH17

First Applicant

AEI17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 December 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.  There are two applicants, who are a mother and son.  The protection claims were made by the first applicant, the applicant mother, who I will refer to as “the applicant”.  Background facts are otherwise set out in the Minister’s outline of submissions filed on 9 November 2017. 

2. The applicants are citizens of the People’s Republic of China[1].  On 10 October 2014, the applicants lodged an application for protection visas[2].  On 15 June 2015, the delegate refused the grant of protection visas to the applicants[3].

   [1] Court Book (CB) 14, 29

   [2] CB 12

   [3] CB 50

3. On 7 July 2015, the applicants lodged with the Tribunal an application for review of the delegate’s decision[4].  On 27 September 2016, the Tribunal invited the applicants to attend a hearing on 23 November 2016[5].  The applicant attended the hearing with the assistance of a Mandarin interpreter[6].  On 21 December 2016, the Tribunal affirmed the decision under review.

   [4] CB 69

   [5] CB 74

   [6] CB 76

4. On 12 January 2017, the applicants filed an application to show cause in this Court.

Applicant’s claims for protection

1. In a statement attached to her application for a protection visa[7], the applicant made the following claims:

   a)the applicant was born in Baoding city in Hebei province in China.  In May 1998, she bought a shop for 200,000 RMB.  The shop became successful and the primary source of income for the applicant’s family;

   b)in January 2013, the applicant received a letter from the government, informing her that her shop was to be demolished in order to redevelop the street.  The applicant was offered 450,000 RMB for the shop, although it was worth at least 800,000.  The applicant was ordered to move by 15 May 2014;

   c)between February and May 2014, the applicant went to the authorities many times to petition for proper compensation.  The government officials did not want to discuss the matter and asked the applicant to leave.  She became angry and was arrested, having to pay 5000 RMB to be released;

   d)after 15 May 2014, the government began to threaten the applicant.  She could not run the shop.  As the shop closed down, the applicant was asked by her suppliers and creditors for payments.  She had to sell goods at a low price to obtain the funds to pay them.  On 19 May 2014, the applicant’s shop was demolished in the night.  The applicant approached the provincial government for compensation, but was unsuccessful; and

   e)in July 2014, the applicant went to Beijing to petition the government there.  While in Beijing, she received a phone call from the second applicant, who informed her that the police had visited the applicant’s house and left a summons for her arrest for “defaming the government.”The second applicant suggested that the applicant go abroad to evade the police.  They applied for visas and escaped from Beijing on 28 September 2014.  If she returned to China, the applicant would be harmed by the local government.

   [7] CB 25-26

2. In her interview with the delegate, the applicant expanded on the claims made in her visa application.  She claimed that while petitioning the local government, a man known as “Black Sixth” who was a member of the “Black Society” employed by the relocation office threatened her.  She was arrested and detained for a period of 15 days, during which time she was beaten[8].  The applicant also confirmed that she had been issued a passport in 2009 and had travelled to Europe.

   [8] CB 58-59

3. Before the Tribunal, the applicant claimed that that she was sick with fluid in her stomach, which doctors had variously told her was cancer or tuberculosis[9].

   [9] CB 93, [23(f)]

Tribunal decision

1. The Tribunal recorded that it put to the applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act) inconsistencies between her evidence to the delegate and the Tribunal in respect of the name of her shop and the goods she sold, the period she spent in hiding until her escape from Beijing, and the second applicant’s arrest[10].

   [10] CB 95, [23(x)]

2. The Tribunal found that the applicant was not a credible witness, having regard to significant inconsistencies in the presentation of her claims which indicated that her evidence was not reliable[11].  In particular, the Tribunal had regard to:

   a)the applicant’s inconsistent and contradictory evidence regarding the type of shop she operated and its name, and the lack of any documentary evidence to support her claim to have operated a shop[12];

   b)her “very contradictory” evidence regarding her arrest and detention in 2013, noting that before the Tribunal she claimed that only her son had been arrested[13];

   c)the “inconsistent and vague” evidence given by the applicant in respect of the incidents and movements around the time of the planned demolition of her shop[14]; and

   d)the applicant’s failure to seek asylum in Europe following her travel there in August 2014.

   [11] CB 96, [26]

   [12] CB 96, [27]

   [13] CB 96, [28]-[29]

   [14] CB 96, [32]

3. The Tribunal rejected as not credible the applicant’s claims to have[15]:

   a)owned a shop in China that was subject to a demolition order for unfair compensation;

   b)complained to, and then to have been assaulted by, an officer of the local government or a member of the Black Society;

   c)ever been arrested; and

   d)had her shop demolished.

   [15] CB 97, [34]

4. The Tribunal did not accept that the applicant feared harm from the authorities or local police in China, nor that the applicant was of any adverse interest to the authorities or anyone else in China[16].  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason, nor that she would suffer significant harm[17].  Having so found, the Tribunal was not satisfied that the second applicant would suffer serious or significant harm in China[18].

   [16] CB 97, [34] and [36]

   [17] CB 97, [37]

   [18] CB 97, [38]

The present proceedings

1. These proceedings began with a show cause application filed on 12 January 2017.  The applicants continue to rely upon that application.  There are four grounds in it:

   1.AAT didn’t consider my medical history so it is unfair.

   2.AAT made a mistake because the differences in the languages.

   3.AAT said it’s different of groceries and retail.  But it is the same in my language.

   4.AAT didn’t consider that I had been diagnosed with cancer and I was having suicidal thoughts so I lose memories about a lot things.

   (errors in original)

2. The application is supported by a short affidavit by the applicant filed with it, which I received. 

3. I also have before me as evidence the court book filed on 22 June 2017.

4. Only the Minister provided written submissions in accordance with procedural orders made by a Registrar.  I invited oral submissions from the applicant this afternoon.  She first made submissions concerning her health.  She told me that she had been diagnosed with cancer and thought she was dying.  She was told that she had cancer of the abdomen and that she had six months to live.  This was about two years ago.  She had an operation, which fortunately proved that she did not have cancer, but had a benign growth in her abdomen, which was apparently removed.  She was placed on medication for about seven months after the operation.  She has no medical records to verify these facts, but I have no reason to disbelieve her.  The applicant first told me that she provided all of her medical records to the Tribunal.  Later, she said that she told the Tribunal member about her medical situation at the Tribunal hearing and offered some medical records, but the member only looked at a medical appointment card.  These assertions are verified, to some extent, by the Tribunal’s reasons at [23(f)][19]. 

   [19] CB 93

5. I am prepared to accept that the applicant had, prior to the Tribunal hearing, a medical condition, which was drawn to the Tribunal’s attention at the hearing.  There is no evidence, however, that the applicant raised any complaint during the hearing about her capacity to participate in the hearing.  The outcome of the Tribunal’s review turned on the Tribunal’s adverse credibility concerns about the applicant’s claims and evidence.  In some circumstances, a medical condition suffered by an applicant may have an impact on their capacity to participate in a Tribunal hearing, which may be a factor which the Tribunal needs to take into account in making adverse credibility assessments.  There is no evidence before me, however, to persuade me that this is such a case. 

6. The applicant also raised a concern about mistranslation at the Tribunal hearing. This relates to what the Tribunal regarded as contradictory statements about the applicant’s shop name in China. This was put to her expressly at the hearing, pursuant to s.424AA of the Migration Act[20].  It is plain from [27] of the Tribunal’s reasons[21] that the Tribunal was not satisfied with the applicant’s response. 

   [20] CB 95

   [21] CB 96

7. The Tribunal found the applicant’s explanation for the contradictory names of her shop to be vague and creating further confusion.  While the applicant now asserts that this was a consequence of inadequate interpretation, there is no evidence to support that contention. 

8. I otherwise agree with the Minister’s submissions concerning the grounds of review. 

Grounds 1 and 4

1. By Grounds 1 and 4, the applicant contends that the Tribunal did not consider her medical history, in particular her cancer diagnosis.  The applicant contends that she was suffering from suicidal thoughts and had “lost memories about a lot of things.” In substance, the applicant appears to contend that the inconsistencies in her evidence were brought about by her medical condition.

2. There is nothing on the face of the Tribunal’s reasons to suggest that the applicant indicated to it that her ability to participate in the hearing was impacted by a medical condition, nor has the applicant filed any evidence to demonstrate that she was suffering from any condition that affected her recall and subsequently prevented her from having a “real and meaningful” opportunity to appear before the Tribunal[22].  In the absence of such evidence, Grounds 1 and 4 cannot succeed.

   [22] Minister for Immigration v SCAR (2003) 128 FCR 553

Grounds 2 and 3

1. By Grounds 2 and 3, the applicant contends that her evidence to the Tribunal regarding the goods sold by her store was mistranslated, and that the Tribunal’s subsequent adverse credibility findings in respect of the inconsistency between her evidence to the delegate and her evidence to the Tribunal were flawed.  The Tribunal placed some weight on the fact that the applicant had given inconsistent evidence on the name of her store, and whether she had sold wholesale or retail goods from the store.

2. However, the onus lies on the applicant to demonstrate that an error in translation occurred in relation to a matter of significance to her claims and that there was a sufficient connection between the inadequate translation and the Tribunal’s decision[23].  There is no evidence before the Court to suggest that any mistranslation occurred in the present case.  In the absence of such evidence, the Court cannot be satisfied that any mistranslation occurred.  It follows that Grounds 2 and 3 would be rejected.

   [23] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]-[17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration (1999) 92 FCR 6 at [38], [45]

3. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed.  The applicant did not wish to be heard on costs.

5. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         20 November 2017