AEK17 v Minister for Immigration

[2019] FCCA 460

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEK17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 460

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Applicant seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 74, 424AA.

Migration Regulations 1994 (Cth), cl.1.12(1)(e).

Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

First Applicant: AEK17

Second Applicant: AGA17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 68 of 2017

Judgment of: Judge Hartnett

Hearing date: 8 February 2019

Delivered at: Melbourne

Delivered on: 8 February 2019

REPRESENTATION

The Applicant: In person

Solicitor acting as Counsel for the First Respondent: Ms Ngo

Solicitors for the First Respondent: The Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 68 of 2017

AEK17

First Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review filed on 12 January 2017 wherein the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicants’ Protection (Class XA) visas (‘the visas’). 

2. The grounds of application are as follows:-

   “1. In report exist error, no.63:  I and my wife not divorced.

   2. I have submitted a notarised Chinese police certificate, But they have no reason to believe I request fair and just help.”

3. The First Respondent seeks dismissal of the application on the basis that no jurisdictional error attends the decision of the Tribunal. 

Background of the First Applicant

1. The First Applicant was born on 2 August 1961 in Fuzhou in Fujian Province in China.  He is a citizen of the People’s Republic of China.  As set out in paragraph 24 of the Statement of Decision and Reasons of the Tribunal (‘the Decision Record’), the First Applicant claimed to be married and to have two children, the first being the Second Applicant, his biological son, who is also currently in Australia.

2. The First Applicant was granted a Class TR (subclass 676) visitor visa on 13 October 2005 to allow him to visit his son, who was then studying in Australia while holding a student visa.  He arrived in Australia on 4 November 2005.  The First Applicant has not departed Australia since his initial arrival.  When his visitor visa expired on 4 February 2006, he remained unlawfully in Australia until 2 December 2010. 

3. As set out in paragraphs 27 and 28 of the Decision Record, on 2 December 2010, the First Applicant was located by Victoria Police during a routine traffic stop and found to be unlawful.  He was interviewed by a compliance officer.  As the Immigration Detention Centre was at capacity at that time, the First Applicant was granted a bridging visa for the period 2 to 3 December 2010, with instructions to return on 3 December 2010.  The First Applicant did not attend or make further contact with the Department of Immigration and Border Protection (‘the Department’) as requested and remained in Australia unlawfully. 

Background of the Second Applicant

1. The Second Applicant was born on 23 September 1988 in Fuzhou in Fujian Province in China. He is a citizen of the People’s Republic of China.

2. As set out in paragraphs 30 to 34 of the Decision Record, on 30 March 2006, a non-compliance notice was attached to the Second Applicant’s record stating he had not commenced his course of education and had not contacted the education provider.  When the Second Applicant’s visa expired on 15 March 2008, the Second Applicant remained unlawfully in Australia.

3. On 1 April 2014, the Second Applicant was located by Victoria Police during a roadside stop.  He was identified as an unlawful non-citizen and detained.

The Applicants

1. On 8 April 2014, the First Applicant, as the Second Applicant’s father, lodged a class XA (subclass 866) protection visa application with the Department and included the Second Applicant as a dependant in that application. 

2. On 8 April 2014, the Second Applicant lodged a bridging visa application which he withdrew on 9 April 2014. On 9 April 2014, the bridging visa associated with the protection visa application for the Second Applicant was refused. On 8 May 2014, the Second Applicant lodged another bridging visa application. This application was deemed invalid under s.74(2) of the Migration Act 1958 (Cth) (‘the Act’) as it was lodged less than 30 days after the last refusal. On 12 May 2014, the Second Applicant lodged another application for a bridging visa. This application was refused on 14 May 2014. The Second Applicant lodged an application for review of the delegate’s decision to refuse a bridging visa. The delegate’s decision was set aside by the Tribunal (differently constituted) on 23 May 2014. The Second Applicant was subsequently granted a bridging visa from 26 May 2014.

3. The application for the visas was refused by a delegate of the First Respondent on 27 November 2014. The Applicants applied to the Tribunal for a review of the delegate’s decision on 12 December 2014.  The Applicants appeared before the Tribunal on 23 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from a Chinese national, a former review applicant. On 8 December 2016, the Tribunal affirmed the decision not to grant the Applicants the visas.

Claims

1. In the application for the visas, the First Applicant made the following claims for protection, as accurately set out in the First Respondent’s written submissions filed 25 January 2019:-

   a)in October 2013, the First Applicant was asked to stand guard at Gai San Correctional Centre for 48 hours without sleep over inmates who could not achieve their work target. The First Applicant was earlier reprimanded for not enforcing rules to lift the productivity of the forced labourers and was punished because of his leniency to the inmates;

   b)he was not paid in February 2004 because he did not accept his “share of the spoils”. This related to money extracted from families of inmates who paid to smuggle in food, cigarettes and drugs;

   c)after he was transferred to an “an Kang” rehabilitation hospital he was asked to perform many inhuman treatment to the inmates, including using electrodes to calm them down. He sympathised with the inmates and always fed them. He was penalised and not allowed to work overtime with the inmates. The hospital held a public hearing over his attitude. He was eventually sacked from his post and discharged from the Gong An (Public Security Bureau) and lost his means to earn a living;

   d)in about April 2005 the First Applicant was riding a motorcycle with the Second Applicant as a passenger. A black car followed the Applicants, then suddenly overtook and “swayed”. Both Applicants were injured and unconscious for about three hours.  Later, his wife told him that the drivers of the van were the canteen sub-contractor of the hospital. They had sent him a message to shut up or leave, or be silenced. The First Applicant was reporting to the higher authority how they rort the system;

   e)if he returns to China he will not be able to make a living because he “whistle blew” the whole system and because he had earlier refused to join the Communist Party. He is regarded as anti-communist party. If he returns he fears that he will be harmed by Zhang Kunyi, the branch organising secretary/CEO of the Gong An facility and a branch organisation of the Fuzhou Communist Party;

   f)he did not believe that the authorities will protect him because the country is being ruled by the Communist Party.

2. On 18 December 2015, the Applicant’s representative provided a written submission to the Tribunal attaching a number of additional documents, including a testimonial that the First Applicant was employed as a casual police officer in charge of security from March 2003 and May 2004.

Evidence at the Tribunal Hearing

1. At the Tribunal hearing, the First Applicant claimed, amongst other things and again as accurately set out in the First Respondent’s submissions that:-

   a)he reported maltreatment of the inmates at the rehabilitation centre through a letter to the superintendent. He claimed that the superintendent committed suicide in 2010 after being whistle blown. He claimed that the security system at the hospital was “all dark”. They tortured the patients by beating them and giving electrical shocks and sometimes denying them food; 

   b)the officials were corrupt and he reported the corruption to the Provincial Central Discipline Committee in a letter with his name attached. After this complaint was lodged, he was forced to harm the patients and he would often be left alone with volatile and violent patients and it was a deliberate risk to his own safety; and

   c)he decided to leave China after the April 2005 incident with the motorcycle and follow the Second Applicant to Australia after his student visa had been granted. He described that “there had been a plan for his son to finish his education in Australia”. The First Applicant claimed that people have come to his house in Fuzhou about every one or two months inquiring about his whereabouts and his contact details.

2. Pursuant to s.424AA of the Act the Tribunal raised with the First Applicant that, according to the 2010 Victoria Police statement, he did not raise his fears of harm, that he could buy a ticket to return to China by selling his vehicle and that he said that he was divorced from his wife. The First Applicant responded to the information raised and said, amongst other things, that there had been issues with his wife and he did not want her to be involved.

3. The Second Applicant claimed that he was not aware of his father’s situation until after he was arrested and that his father never raised the harm he experienced or feared until that arrest and detention. Further that his parents were still together.

4. The witness claimed to be a former police officer in China and described “the entire system as corrupt”.

5. In post hearing submissions, the Applicant’s representative corresponded with the Tribunal on 21 January 2016, addressing a number of issues raised at the hearing.

Relevant findings of the Tribunal

1. The Tribunal noted that the Applicants did not apply for protection visas until they were granted bridging visas to be released from immigration detention in 2014.  The Tribunal said, at paragraph 109 of the Decision Record, the following:-

   “The Tribunal has also considered that the applicants did not apply for protection after being arrested, questioned and then released by the Victoria Police but not held in immigration detention in 2010.  In the first applicant’s case, he became an unlawful non‑citizen in Australia in early 2006.  According to the first applicant, the applicants were unaware of protection visas until they sought legal advice about protection visas during or after their time in immigration detention. At a scheduled hearing the first applicant undermined this claim with inconsistent testimony.  On the one hand, he said he had not heard about protection visas until 2014; while on the other hand the first applicant said that he said he had heard rumours that agents take their clients’ money; that their services were exorbitantly high in 2010 and that the advice he received was that the agents could not guarantee the granting of protection visas. The first applicant stated that he feared being exploited because his English was poor.  This evidence clearly indicates the first applicant was aware of protection visas considerably earlier than claimed. The Tribunal finds this testimony by the first applicant to have been contradictory and it notes that the first applicant did not mention anything about his fears in returning to China in his compliance interview in 2014. Accordingly the Tribunal finds that the first applicant was not unaware of protection visas considerably earlier than around the time he and his son applied for protection visas during or after the applicant’s time in immigration detention in 2014 and that he either [sic] fabricated the specific claim about when he knew about protection visas.”

2. The Tribunal said further, in paragraph 92 of the Decision Record:-

   “While the Tribunal is satisfied that the applicants are biologically related; share the same hukou in China;  that the second applicant is not in a spousal relationship;  and that [sic] reside in the same household while both in Australia, the Tribunal is not satisfied the second applicant met the requirements in relation to dependency.  The second applicant is an adult and does not have any physical or psychological conditions which would cause or contribute to his total or substantial reliance on his father or prevent him from working to support himself.  While the Tribunal accepts that the first applicant cooks for the second applicant, there is no evidence that he is wholly or substantially reliant on his father for financial, psychological or physical support.”

3. Accordingly, the Tribunal found the Second Applicant not a member of the same family unit as the First Applicant and that he did not satisfy cl.1.12(1)(e) of the Migration Regulations 1994 (Cth). The Tribunal was also not satisfied the Second Applicant was a member of the same family unit as the First Applicant for the purposes of ss.36(2)(b)(i) and 36(2)(c)(i) of the Act.

4. The Tribunal had numerous credibility concerns with the evidence given by the First and Second Applicants and their witness. The Tribunal considered the testimony by the Second Applicant regarding his visa history strongly indicated the Second Applicant did not have any genuine personally held fears of harm in returning to China. It also indicated to the Tribunal that the First Applicant’s claims regarding returning to China where a contrivance for migration purposes.

5. The Tribunal, in the context of the significant delay in applying for protection visas, found the “applicants’ claims for protection to have been cumulatively weak and that the first applicant lacks reliability and credibility”. [1]

   [1] Decision Record, 119.

6. As set out in paragraph 124 of the Decision Record, the Tribunal considered the Applicants claims both individually and cumulatively, and did not accept that the Applicants would return to their home province and face a real chance or a real risk of ongoing monitoring, harassment, arrest or interest which would lead to serious or significant harm as the Applicants were not of any adverse interest to anyone, powerful or otherwise, in China’s ruling party, security apparatus, law and enforcement organisations, or China’s correctional and psychiatric facilities. 

7. As set out in paragraph 127 of the Decision Record, the Tribunal concluded:-

   “Because the first applicant is not a credible or reliable witness and because the Tribunal had found the evidence to be considerably limited, inconsistent and fabricated, the Tribunal does not accept that the applicants are persons who faces any harm arising from any person in authority, with or without political connections, within and throughout the applicant’s country of origin and reference for any Convention, including political opinion, or a non-Convention reason, at all, now and into the reasonably foreseeable future.”

8. The Tribunal was not satisfied the Applicants were persons in respect of whom Australia had protection obligations under the Refugees Convention, and that the Applicants did not have well-founded fears of persecution. The Tribunal found the Applicants did not satisfy the criterion set out in s.36(2)(a) of the Act or the alternative complementary protection criterion in s.36(2)(aa) of the Act.

Consideration

1. The judicial review application does not raise any proper grounds of review. In respect of the first matter, the Tribunal did not find that the Applicant and his wife were divorced.

2. In paragraph 63 of the Decision Record, and in respect of ground one of the application before the Court, the Tribunal stated the following:-

   “63. Pursuant to s424AA, the Tribunal raised the matters that may be relevant to the Tribunal regarding the 2010 Victoria Police statement in which the first applicant did not raise his fears of harm, that the first applicant could buy a ticket to return to China by selling his vehicle; and that he said he was divorced from his wife. The Tribunal said he did not have to respond straight away; the first applicant said he wanted to address the matters and stated that at the time he was afraid and panicked and feared being deported back to China where he had threats to his life. The first applicant said he was very nervous at the time. He said he had told the police he would be able to buy a ticket for China if he could return to Australia and not that he could return to live permanently. With regards to describing himself as divorced, the first applicant said there had been issues with his wife and [sic] did not want her to be involved.”

3. Thereafter, the Tribunal made a finding with respect to the status of the relationship between the First Applicant and his wife, which accorded with the statement made in the grounds of review by the Applicant, namely, that he and his wife were not divorced. Paragraph 101 of the Decision Record is as follows:-

   “While the Tribunal has found the first applicant not have provided overall credible written and oral claims, it accepts the following regarding the first applicant.  The first applicant was born in and has resided in Fujian Province where he has worked most of his life as claimed.  Despite some reservations, the Tribunal accepts the first applicant remains married to his claimed wife despite rarely speaking to her and not seeing her since late 2005.  The first applicant is the biological father of the second applicant, his son and the adoptive father of a daughter.”

4. In any event, even if the Tribunal made such a finding, it would have been an error of fact, not law, and not a jurisdictional error. Further, it could have made no material difference to the outcome.[2]

   [2] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, 35.

5. In respect of the second ground of review, wherein the Applicant refers to “a notarised Chinese police certificate”, the Applicant was asked in the course of the hearing this day what precise document he was referring to, given that there did not appear in the evidence before the Court, as contained in the Court Book, any notarised Chinese police certificate. The Applicant confirmed that what he was referring to were the two documents headed “Testimony” which appear at pages 93 and 95 of the Court Book, and which are from the Fuzhou Drugs Rehabilitation Centre, and the Fuzhou City Police Ankang Hospital, both dated 10 April 2014. Both certify the employment of the Applicant as a casual police officer in charge of security from March 2003 to May 2004 at the Fuzhou Drugs Rehabilitation Centre, and from May 2004 to October 2005 at the Fuzhou City Police Ankang Hospital.

6. The Tribunal found, as set out in paragraph 102 of the Decision Record, that the First Applicant had been employed in the capacities described in those two documents, and accepted that such institutions’ functions closely related to the goals of maintaining law and order and that corruption and maltreatment occurred in such institutions. The Tribunal noted that:-

   “…This finding is supported by the country information above and by the most recent DFAT and UK country information reports on the People’s Republic of China.”

1. The Tribunal clearly took that material into account.  This ground simply seeks impermissible merits review. The Tribunal carefully considered each and every of the Applicant’s claims and rejected those claims mostly on the basis of adverse credibility findings. That was a matter solely for the Tribunal.

2. The application will be dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 March 2019