AFW16 v Minister for Immigration

[2017] FCCA 2460

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFW16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2460

Catchwords:
MIGRATION – Administrative Appeals Tribunal – first and second applicants claim to fear persecution in China as a result of their promotion of partner swapping – no failure by the Tribunal to deal with an integer of the applicants’ claims – refusal to contact and take oral evidence from the Commissioner was not unreasonable and cannot be said to lack an evident and intelligible justification – the Tribunal complied with its requirements under s.425 – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36,425, 476

First Applicant: AFW16

Second Applicant: AFX16

Third Applicant: AFY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 240 of 2016

Judgment of: Judge Street

Hearing date: 21 September 2017

Date of Last Submission: 21 September 2017

Delivered at: Sydney

Delivered on: 12 October 2017

REPRESENTATION

Counsel for the Applicant: Mr N Poynder

Solicitors for the Applicant: Perkins Fahey Rosenblum

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The further amended application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,200.00.  

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 240 of 2016

AFW16

First Applicant

AFX16

Second Applicant

AFY16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 January 2016, affirming a decision of the delegate not to grant the applicants protection visas.

2. The applicants are citizens of China and applied for protection visas on 12 September 2013. The first applicant is the wife of the second applicant, and the first and second applicants are the parents of the third applicant, who is a child. In summary, the first and second applicants claim to fear persecution in China as a result of their promotion of partner swapping. The first and second applicants alleged that the conduct they engaged in attracted the attention of the Chinese authorities, which included the publication of articles promoting partner swapping and a website that facilitates such activity. 

3. The second applicant was the subject of evidence identifying that the second applicant had left the jurisdiction and accordingly, the second applicant in pursuing these proceedings could not ultimately succeed and the proceedings by the second applicant are moot. The delegate found that the applicants failed to meet the criteria for the grant of a visa and refused the same on 31 July 2014. 

The Tribunal

1. The applicants applied for review on 22 August 2014. The applicants were invited to attend a hearing and appeared before the Tribunal to give evidence and present arguments on 10 June 2015 and 17 July 2015.

2. The Tribunal identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicants’ claims and evidence and in particular, that the first and second applicants had been police officers in China for approximately 10 years and alleged a series of persecutions perpetrated by the Chinese authorities from early 2006. The first applicant claimed that she had been at the forefront of the campaign for partner swapping since 2006 and a prolific writer on sexuality issues through blogs, media and publication. The first applicant alleged that her activities had resulted in a series of interrogations and her summary dismissal as a police officer.

3. The second applicant alleged that he was the owner and operator of websites promoting partner swapping activities in China and that he was summarily dismissed as a police officer in late 2006.

4. The first applicant alleged that she was issued with a notice of summons under Article 117 of the People’s Republic of China Code of Criminal Procedure on 24 June 2013, requiring her to attend for the purpose of interrogation. The applicants claimed that the Chinese government and courts are taking an increasingly hostile position to nationals engaging in partner swapping activities. The first and second applicants alleged that they had been forced to relocate to different houses over a period of seven years.

5. The Tribunal summarised the applicants’ claims and evidence and also made reference to the statutory declaration of the second applicant, giving an account of an alleged conversation between the second applicant and a Mr Liu Can of the Chinese Public Security Bureau about a notice of summons. In summary, it was alleged that Mr Liu Can, (who had not provided a written statement to the second applicant), stated that the current situation in China is not at all conducive to the first and second applicants’ survival, and the Tribunal relevantly set out an alleged quotation:

   with the exception of a handful of professors doing social science research, no one would dare openly vouch their support for partner swapping. It is only on the net a few meagre voices can be heard in support of it, but against the vast majority who finds it unacceptable, even condemnable from a moral high ground. Ad hominem attacks are not common, akin to advocating homosexuality in Iran. These two are the true pioneers and prime movers of partner swapping in China… [and] even built a website for partner swapping… They, with their partner swapping, are right there at the tip top of “violating Chinese social mores and corroding public order and decency.”

6. The Tribunal then noted that Mr Liu Can did not wish to provide a written statement to the Tribunal as he was concerned that he would be charged with espionage. The Tribunal noted that it declined to ring Mr Liu Can during the hearing. Mr Liu Can was not a person in respect of whom a written request was made for the taking of evidence. Nonetheless, in the course of the transcript for 10 June 2015, the transcript reveals the issue of Mr Liu Can’s evidence being taken by telephone being raised. The transcript records the migration agent saying that the persons are expecting a call. The Tribunal member observes:

   Well, that’s one of the things thing we need to talk about. It is not our practice to – as you know, we have (indistinct) in private, we have real problems phoning unidentified people in other countries and conducting – and this hearing being conducted, so my present inclination is not to make that call. I will, however, give you the opportunity, if you can acquire a statement from that witness, that’s what I would encourage you to do, and I would allow you time to do that.

7. The migration agent noted that the Commissioner Liu Can refused to give any such statement, for fear of persecution. The Tribunal member indicated understanding that position, but not being minded to ring that person. The Tribunal member made an observation of allowing additional time to provide written submissions and other information, and that that permits the applicants an opportunity to get a statement from any other witness. The submissions also identify the applicant’s case being advanced as being members of a particular social group, and having to be satisfied that there is such a social group.

8. Towards the end of the hearing on 10 June 2015, the Tribunal member raised with the applicant reasons why a particular document might be found to be fabricated and the migration agent made reference again to a desire for the Tribunal to call Commissioner Liu Can, because he is a senior officer and has personal experience about issues of service of summons. The Tribunal member observed, in relation to Commissioner Liu Can, that the member was not going to telephone him, but that they could get a statement from him if they were able. The migration agent responded that he cannot as he does not want to put anything in writing. The Tribunal member maintained that that was a matter for them, but he would have thought that they could get something from the Commissioner Liu Can. The migration agent maintained that that could not be done, because he could not put anything in writing.

9. The Tribunal adjourned the matter, part heard to 17 July 2015. The transcript on 17 July 2015 reveals that the issue of taking any evidence from the Commissioner Liu Can was not re-raised within the course of that further hearing, nor was it the subject of any further submission to the Tribunal.

10. The Tribunal summarised the findings made by the delegate and what occurred at the hearing on 10 June 2015, and the further hearing on 17 July 2015, as well as the submissions on behalf of the applicants.

11. The Tribunal made reference to the summons allegedly issued to the first applicant, shortly before her departure to Australia, and identified raising concerns in relation to the summons and giving the applicants a further opportunity to respond.

The Tribunal’s findings

1. The Tribunal found the applicants gave oral evidence consistent with their written claims, and accepted that the first and second applicants were police officers in China for approximately 10 years, until late 2006. The Tribunal accepted the first and second applicants participated in partner swapping in 2004 on one or two occasions, and found that since that time they have not participated in that activity. 

2. The Tribunal found the first applicant wrote some articles on the subject and in 2006, appeared on television to discuss the issue. The Tribunal found that the first applicant was dismissed from the police force shortly thereafter, and that she published books on the subject in Taiwan in 2012, which were banned in China. The Tribunal found the first applicant did not involve herself in the websites established by the second applicant.

3. The Tribunal was prepared to accept that the applicants were dismissed because of their activities in promoting partner swapping and most likely related to the first applicant’s appearance on television to discuss the subject. The Tribunal accepted that in the immediate aftermath of their dismissal, they were interrogated a number of times and found that they relocated after their dismissal, from time to time, to find work. 

4. The Tribunal did not accept that the Chinese authorities issued the first applicant with a notice of summons under Article 117 of the People’s Republic of China Code of Criminal Procedure, requiring her attendance for the purpose of interrogation. The Tribunal provided reasons in support of that adverse finding. The Tribunal did not accept that the Chinese authorities issued the first applicant with a notice of summons and did not accept that there were a series of conversations between the second applicant and officers of the Beijing Public Security Bureau, either in relation to that summons or requesting information about members of the site. 

5. The Tribunal did not accept that the applicants will become particular targets for revenge by other police officers, particularly in view of the length of time that has passed since they ceased to be police officers and, in view of the fact that they did not claim to be the victims of such revenge prior to departing China.

6. The Tribunal found the applicants were able to depart China legally on 18 December 2012, to travel to Australia and returned to China on 8 February 2013. The Tribunal found, both on departure from and return to China, the first and second applicants encountered no problems with Chinese authorities and were not questioned or otherwise detained.  The Tribunal found that the applicants travelled overseas to Malaysia, Thailand and Singapore in 2012 again, without any interference or interest by the Chinese authorities. 

7. The Tribunal found the applicants were able to depart from China legally on 26 June 2013 to travel to Australia and that they encountered no problems with the Chinese authorities and were not questioned or otherwise detained. The Tribunal did not accept that this was the result of the applicants’ understanding of procedure at the airport, as claimed, but found that it was because the applicants were not of interest to the Chinese authorities at the time.

The first applicant’s claims

1. The Tribunal made reference to the first applicant’s fear of returning to China, and that she would be arrested, charged and imprisoned. The Tribunal made reference to the claim of being a member of a social group that was not identified by the first applicant or her representative in submissions. The Tribunal observed that there are two potential groups to which the first applicant could be a member. The first is that the first applicant is a member of a group of persons who participate in partner swapping. The second is that the first applicant is a member of a group of persons who promote partner swapping.

2. The Tribunal was prepared to give the first applicant the benefit of the doubt, to find that she is a member of a particular group of persons that promotes partner swapping. The Tribunal did not accept that, that for one or more of the five Convention reasons, including membership of any one of the particular social groups identified, will be the essential and significant reason for the first applicant being harmed if she returns to China. The Tribunal found any harm the first applicant faces, as claimed, will arise because of prosecution and subsequent imprisonment as a result of offending China’s licentious laws.

3. The Tribunal considered each of the first applicants’ fears of serious harm amounting to persecution both individually and cumulatively. The Tribunal did not accept that the first applicant has a real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. The Tribunal was not satisfied that the first applicant faces a well-founded fear of persecution for a Convention reason in China now or in the reasonably foreseeable future and was not satisfied that the first applicant is a refugee under s.36(2)(a) of the Act.

4. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there is a real chance that the first applicant will suffer significant harm and found that the first applicant failed to meet the criteria under s.36(2)(aa) of the Act.

5. In considering complementary protection, the Tribunal made reference to Article 301 of the Chinese Criminal Code creating an offence of group licentiousness, and that prosecutions have taken place pursuant to that article as result of which, individuals have been convicted and sentenced to a period of imprisonment. The Tribunal found that there are legislative provisions in the Chinese Criminal Code which proscribe what has been described as licentiousness activities. The Tribunal found there was nothing in evidence before the Tribunal to suggest this is other than a law that applies equally to Chinese citizens or that there is a risk of personal punishment faced by the first applicant different from the risk faced by the population generally. The Tribunal found that the first applicant was not a person in respect of whom Australia had protection obligations.

The second and third applicants’ claims

1. The Tribunal addressed the claims of the second applicant and the third applicant was identified as being only a member of the family unit and as the claims for a protection visa by both the first and second applicants were rejected, the third applicant’s claim as a member of the family unit could not succeed. 

Before this Court

1. The grounds in the further amended application as follows:

   1. The second respondent (the Tribunal) constructively failed to exercise its jurisdiction under s 414 of the Migration Act 1958 (the Act) to review the decision of the first respondent by failing to consider an integer of the first and second applicants' claim for a protection visa.

   Particulars

   (a) The first and second applicants claimed that they faced persecution in China because of their involvement in the promotion of “partner swapping,” which was in violation of the laws of China proscribing licentious behaviour.

   (b) The Tribunal found that the laws of China proscribing licentious behaviour apply equally to all Chinese citizens and that the applicants did not therefore satisfy the requirements for the grant of a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act.

   (c) The Tribunal failed to appreciate, or to make findings on, the applicants' claim that they would be differentially treated in the investigation and enforcement of the laws of China proscribing licentious behaviour by reason of their former employment as police officers and as leaders of the partner swapping movement.

   2. The Tribunal failed in its obligation to have regard to the applicants' request to obtain oral evidence from a witness, Can Lui, and thereby failed to comply with its obligation under s 425(1) of the Act to allow the applicant to give evidence relating to the issues arising from the decision under review.

Consideration

Ground 1

1. In support of ground 1, Mr Poynder of counsel submitted that the Tribunal had failed to take into account the applicant’s claims of fear of differential treatment by reason of being police officers and by reason of being leaders of the partner swapping movement. Mr Poynder took the Court to assertions in the evidence before the Tribunal suggesting the applicants were at the forefront of the partner swapping movement, and to the findings in relation to the dismissal of the first and second applicant from the police force, as well as the particular findings that have been accepted by the Tribunal.

2. The submissions by Mr Poynder advanced that the Tribunal had not considered the discriminatory application of the law in China against the first applicant by reason of having been with her husband, a leader in the partner swapping movement, and by reason of her having been in the police force. Mr Poynder submitted that these were integers of the first applicant’s claim that should have been the subject of findings and that the Tribunal had failed to deal with the applicants’ claims that they would be treated differentially because of their former employment as police officers and as leaders of the partner swapping movement. 

3. I accept the submissions of the first respondent that the applicants did not advance a claim that they would be differentially treated in an investigation or prosecution either because they were perceived to be leaders or because they were former police officers. No such claim was made and I find that no such claim arose on the material before the Tribunal.

4. The Tribunal made findings that the punishment that the first and second applicants would face would be no different from the risk faced by the Chinese population generally. The Tribunal made findings in relation to the applicants’ alleged fear of revenge by other police officers. I accept the first respondent’s submission that no other claim of differential treatment in relation to the enforcement of Chinese law was made by reason of being former police officers, nor does any such claim arise on the papers. There was no failure by the Tribunal to deal with an integer of the applicants’ claims. No jurisdictional error as alleged in the ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Poynder of counsel took the Court to the reasoning in the Tribunal’s decision referring to the request for the taking of evidence from the Commissioner Liu Can and submitted that it was unreasonable for the Tribunal not to take steps to obtain oral evidence from Commissioner Liu Can. 

1. This is a case where no statement had been provided by the Commissioner to the Tribunal. There was an obvious issue of identification which the Tribunal raised in the course of the oral hearing in expressing concerns about the proposal to take evidence by telephone from the Commissioner. In the circumstance of the present case where no written statement had been provided and where the Tribunal took into account the substance of what it was alleged that the Commissioner’s evidence as expressly identified in the Tribunal’s reasons, the refusal to contact and take oral evidence from the alleged Commissioner was not unreasonable and cannot be said to lack an evident and intelligible justification.  

2. There was no failure by the Tribunal to comply with its obligations under s.425 of the Migration Act in the conduct of the review. The applicants had a real and meaningful hearing and had a real opportunity to produce further written material from the Commissioner if they wished to do so. No jurisdictional error as alleged in ground 2 is made out.

3. In relation to the second applicant, I accept that as the second applicant has departed from Australia there is no visa which would permit the second applicant to return and accordingly, the removal renders the proceedings moot and futile as against the second applicant.  In these circumstances, relief would have been refused if any relevant error had been established by the second applicant.

4. For the above reasons, the further amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 October 2017