AGD19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 422

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AGD19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 422

File number(s):

SYG 127 of 2019

Judgment of:

JUDGE GIVEN

Date of judgment:

10 May 2024 

Catchwords:

MIGRATION – Where applicant sought extension of time unnecessarily – substantive grounds seeking merits review – additional allegation that Tribunal failed to take into account relevant consideration  

Legislation:

Migration Act 1958 (Cth) ss 5J, 476, 477, 422B

Cases cited:

AQH16 v Minister for Immigration & Anor [2017] FCCA 1657

Lamb v Sherman (2023) 298 FCR 79

Division:

General Federal Law

Number of paragraphs:

56

Date of hearing:

21 March 2024

Place:

Sydney

Applicant:

In person

Solicitor for the Respondents:

Ms I Leonard, Australian Government Solicitor

ORDERS

SYG 127 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AGD19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	10 MAY 2024

THE COURT ORDERS THAT:

1.The application filed on 18 January 2019 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

1. By an application to show cause filed with this Court on 18 January 2019, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 14 December 2018, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant him a Protection visa (visa) (second Tribunal decision). 

   BACKGROUND:

2. The background to the matter and a summary of the Tribunal’s decision are derived from the written submissions of the first respondent.  Unless otherwise indicated, that background does not appear to be in dispute.

3. The applicant is a male citizen of China.  On 21 October 2012, the applicant arrived in Australia as the holder of a student visa.  He subsequently applied for a further student visa which was refused on 7 November 2012, following which he was granted several bridging visas (CB 94 to 95 and 147). 

4. On 26 August 2015, the applicant applied for the visa (CB 23 to 61). 

5. On 8 December 2015, a delegate of the first respondent refused to grant the visa (CB 94 to 100).

6. On 10 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision (CB 107 to 108).

7. On 16 February 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 146 to 154) (first Tribunal decision). 

8. On 21 July 2017, the (then) Federal Circuit Court of Australia (FCCA) quashed the first Tribunal decision and remitted the matter to the Tribunal for determination according to law (CB 160)[1]. 

   [1] See AQH16 v Minister for Immigration & Anor [2017] FCCA 1657 (AQH16)

9. On 7 September 2017, the Tribunal wrote to the applicant to notify him that the Tribunal would be reconstituted (CB 162).

10. On 30 October 2018, the Tribunal invited the applicant to attend a hearing scheduled for 27 November 2018 (CB 166).

11. On 27 November 2018, the applicant attended the hearing to give evidence and present arguments with the assistance of an interpreter in the Mandarin language (CB 171). 

12. On 14 December 2018, the Tribunal affirmed the delegate’s decision to not grant the applicant the visa (CB 228 to 235). 

    Protection claims

13. The applicant’s claims for protection were set out in his visa application (CB 56 to 58).  The applicant also relied on a personal statement which he had submitted as part of an earlier request for ministerial intervention (CB 3 to 6). 

14. In summary, the applicant claimed to have left China because there was a “lack of love, lack of inclusiveness lack of respect in China” (CB 56).  The applicant claimed that he would suffer mental harm if he returned to China, that he holds views that are contrary to the Chinese socio-political order, that he would have to compromise his values and that he has shared his views on an online blog.  The applicant said that, on return to China, if he did not hide his values, he would suffer physical and mental harm from the Chinese government, although he does not claim to have been physically harmed there before.

15. The applicant also claimed that the Chinese legal system is corrupt, evidenced by the applicant having lost a worker’s compensation claim in a particular court, and having seen the presiding judge and his employer dining together.  Despite this, the judge did not recuse himself.

    Second Tribunal decision

16. The Tribunal observed that the applicant had not engaged in any political or anti-government activity since arriving in Australia, and that his evidence made it difficult to ascertain what views he might express, or activities in which he may engage, to demonstrate his dissatisfaction with the Chinese political system (CB 233 at [37] to [38]).  The Tribunal found it difficult to accept that he would act in a manner likely to attract adverse attention, in circumstances where he had largely refrained from engaging in any controversial activity in Australia (CB 233 at [38]). 

17. The Tribunal accepted that the applicant had made online posts, but found there to be no evidence that he was a recognised (or high-profile) blogger or commentator, nor that his online activity would attract attention from the authorities (CB 234 at [41]). 

18. The Tribunal also accepted and acknowledged the applicant’s dissatisfaction with the socio-political situation in China, but did not consider that he would be required to modify his behaviour so as to avoid a real chance of serious harm arising from his political opinions (CB 234 [42]).  The Tribunal noted the applicant’s concern that he could not fulfil his career aspirations to be lawyer if he did not join the Communist Party, but was not satisfied that any impact of this would amount to serious harm or significant harm (CB 234 at [43]).

19. The Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm on return to China for reason of his political opinions or for any other reason, and found that the applicant did not have a well-founded fear of persecution in China (CB 234 at [44]). 

20. For the same reasons, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there was a real risk he would suffer significant harm (CB 235 at [46]).

    APPLICATION TO THIS COURT:

21. The applicant commenced these proceedings by an application to show cause filed with the Court on 18 January 2019, by which he also erroneously sought an extension of time. Pursuant to s 477 of the Migration Act 1958 (Cth) (Act), any application was due to be made to this Court within 35 days of the date of the second Tribunal decision. By reference to the date of the second Tribunal decision, that means that any application to this Court was required to be made on or by 18 January 2019. The applicant’s application for judicial review was lodged for filing at 2:38 pm on 18 January 2019, and also accepted for filing on the same date. It was, therefore, made within time[2] and does not require any extension.  The Court explained this to the applicant at the hearing and he agreed.  As such, the Court has not had regard to the aspects of the application which pertain to the extension of time.

    [2] Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ.

22. The proceedings were initially docketed to another Judge of the Court.  On 14 February 2019, a Registrar of the Court made orders by consent, which included leave to the applicant to amend his application on or by 9 May 2019.  The proceedings were stood over for a callover before a Registrar with an order made for final hearing before the first primary Judge, on a date that was to be advised administratively to the parties.

23. While the applicant did not file an amended application in accordance with the grant of leave, an additional Affidavit made by him was filed on 8 May 2019.  For reasons to which I will return later, it may be that it was this Affidavit document that was intended by the applicant to be an amended application.  The proceedings were later placed in the central migration docket.  They were later called-over by telephone before a Registrar of the Court on 22 August 2023, during which the applicant appeared with the assistance of an interpreter in the Mandarin language.

24. The proceedings remained in the central migration docket until 30 January 2024, when they were docketed to me, and I made orders listing it for a hearing at 10:15am on 21 March 2024.  By those orders, the applicant was also granted further leave to amend, with any amended application to be filed on or by 22 February 2024.  The applicant and first respondent were each directed to file and serve written submissions 14 and 7 days before the hearing, respectively.  The applicant did not file any additional documents, in accordance with those orders, or at all. 

25. On 4 January 2024, the applicant wrote to the Court Registry in the following terms:

    I just want a normal life for a normal person.  How long do you want me to wait?

26. As already observed, the matter was docketed to me on 30 January 2024.  The applicant wrote again to the Registry as follows:

    More than five years?  How many five years can a person have in his life?  Have you considered my story?  Have you ever respected me?

27. The applicant appeared before me at hearing in person, with the assistance of an interpreter in the Mandarin language.  The Minister was represented by a solicitor.  The Court Book was tendered for the first respondent and marked Exhibit “1R”.  The following documents were received from the applicant:

    (a)an Affidavit made by him in support of the originating application which the Court received not as evidence, but as raising an additional ground of review (see [23] above);

    (b)an Affidavit made by the applicant on 8 May 2019 annexing a number of screenshots of internet articles (second Affidavit). 

28. The body of the second Affidavit asserts the truth of the applicant’s claims and says that the materials he provided were true and effective.  The screenshots which were attached to the second Affidavit document do not, in most instances, bear dates.  To the extent that two of them do, one is dated 27 August 2017 (before the second Tribunal decision), and the last page is dated 26 April 2019 (after the second Tribunal decision). 

29. The second Affidavit was read, subject to relevance.  I note the solicitor for the Minister did not make any formal objection to the second Affidavit other than to its potential relevance.  To the extent that the body of the second Affidavit makes assertions as to the truth of the applicant’s claims, this was treated as a submission as to the merits of his case.  To the extent that the second Affidavit annexes undated screenshots from Wikipedia and other online sources, there is nothing to demonstrate to me that these documents were ever given to the Tribunal.  In respect of the latter document, it is not relevant because it post-dates the decision of the Tribunal.

30. In the course of identifying the documents at hearing, the applicant also claimed to have submitted an Affidavit to the Court in the past month.  A review of the Court file does not reveal any such document as having been lodged.  The applicant showed the solicitor for the Minister a screenshot on his phone, which the solicitor for the Minister described to the Court as being a pre-lodgement screen which indicated that the applicant was in the process of lodging a document.  However, there was no evidence that said document was lodged.

31. I asked the applicant if he had a copy of the document itself.  He indicated that he did on his mobile telephone.  The Court adjourned the matter while the applicant sent the email to my Associate, who duly printed that document and gave a copy to the solicitor for the Minister so that she could consider the Minister’s position.  When the matter resumed, the solicitor for the Minister indicated that she had no formal objection to the additional Affidavit document being received, again, subject to relevance.

32. Ultimately, I received the additional document not as an Affidavit, but as a tender bundle from the applicant, which was duly marked as Exhibit “1A”.  The first page of Exhibit “1A” is the first page of the Court’s Affidavit form, partially completed, however, there is nothing in the balance of that document to indicate that any Affidavit was, in fact, properly executed.  To that extent, page 1 of Exhibit “1A” is not relevant.  The second page of Exhibit “1A” is a typewritten statement, apparently from the applicant, which the Court indicated would be treated as a written submission.

33. The three remaining pages of Exhibit “1A” are screenshots of various documents, both in foreign characters and in English.  The relevance of them is not apparent on their face.  The second of those documents appears to relate to a passport renewal in respect for the applicant, which is a matter that is addressed in written submission. 

34. Overall, the relevance of Exhibit “1A” is largely limited to the Court having before it the written submission, which is page 2 of that bundle, to which I will return later.

35. The Court Book was tendered for the Minister and marked Exhibit “1R”.  The applicant also confirmed that he had received the Minister’s written submissions, and that he had read them. 

    GROUNDS OF REVIEW:

36. The applicant’s grounds of review as set out in the originating application are follows (errors in original):

    1.In the ruling, from the contents of statement of decision and reasons articles 40 and 42 can seen that. I am a person who has political dissent for a long time with the CCP.

    2.It is clearly stated in the ATTACHMENT- Extract from Migration Act 1958 5-(1) that cruel or inhuman treatment or punishment is not only physical but also spiritual.

    3.I am a political dissident with the Chinese Communist Party. Living in a social environment like China without freedom of speech, one-party dictatorship, and strict supervision of people’s ideas and minds, in order to protect themselves, we must suppress ourselves mentally and psychologically for a long time. I dare to express my own political opinions and opinions I can not pursue my own ideals of democracy and the rule of law, and I can not live my self.  This is the fact that I suffer cruel and inhuman harm in spirit and psychology. 

    4.The reason why I have not been seriously hurt by people is because I have been self-protecting all the time. This does not mean that I am not likely to suffer personal injury when I return to China. On the contrary, the life experience in the democratic and legal society is even stronger, so if I return to China, I may not be able to suppress myself as I used to, and I am likely to suffer severe personal injury while being subjected to cruel…

    the first sentence of the applicant’s Affidavit document filed in support of the application raises an additional ground (error in original):

    A relevant consideration was not taken into consideration under Act.

37. Included in the prayers for relief in his application, the applicant says as follows:

    If can, I hope that the Court can directly defend my claim and approve my application.  In order to avoid the erroneous ruling again, resulting in a waste of public resources.

38. At the commencement of the hearing, the Court explained to the applicant its limited jurisdiction and role in judicial review, and he indicated that he understood.  The Court also explained (in response to the prayer for relief set out in the preceding paragraph) that it is not for the Court to “defend” his claim nor “approve his application”.  It was explained to the applicant that the Court does not consider the applicant’s protection claims again, and that the only basis upon which the matter could be remitted to the Tribunal was if there was a jurisdictional error present in the second Tribunal decision.

    Grounds 1 to 4

39. It is convenient to group these grounds together.  They are not, in essence, proper allegations of error, but rather statements as to the merits of the applicant’s protection claims.  The applicant was asked what he wished to say about his grounds.  In respect of ground 1 which makes a specific reference to [40] and [42] (CB 234) of the second Tribunal decision, the applicant says that the decision is affected by an illogical mistake.  The applicant said that the Tribunal did not think he could go back to China because there was little chance he would face persecution.  The applicant took issue with the conclusions of the Tribunal that he would not be persecuted.  He made, on a number of occasions, a submission to the effect that persecution is not only limited to physical harm, but can involve mental and psychological harm, also. 

40. The applicant made a number of submissions to the effect that, if he was to return to China, he would conduct himself in a way which would likely give rise to a real risk that he would be persecuted.  He also made submissions to the effect that, if he did not so conduct himself, that would only be because he was trying to avoid harm.  The applicant was adamant throughout the hearing that he wanted the Tribunal to answer his questions.  At a certain point in submissions in reply, he was also determined that the Minister should answer his questions.  The applicant said:

    I want the Tribunal to answer my questions, not your Honour.[3]

    [3] Transcript 21 March 2024 at T11.10

41. The Minister made no specific submission in respect of the grounds as contained in the originating application, stating only that they seek impermissible merits review, which is an accurate summary.  As was explained to the applicant a number of times during the hearing, while it is understandable that he takes issue with the Tribunal’s conclusions, the central assertion that his claims are true is not a basis upon which the Court can remit the matter. 

    Additional ground of review

42. The additional ground of review which does, in fact, make a proper allegation of error, contends that the Tribunal failed to take into account a relevant consideration.

43. When asked to speak to what that relevant consideration was, the applicant contended it is whether he will be persecuted in China, again asserting that the second Tribunal decision is illogical, and made submissions to the effect that he has been in Australia for more than 10 years.  He says that he has complied with Australian law.  He said that when his visa was cancelled in 2015, he presented himself to the Department, knowing that he would then be detained.

44. The applicant says that since that time, he has held a Bridging visa and that he has to report any changes to his address.  He says he does not have “full freedom”, and that the Tribunal’s findings to the effect that he would not do anything to raise attention in China were illogical.  He asked, “Why would I choose a life like this”,[4] and said the fact that he is content to stay in Australia, in circumstances which he describes as less than free, proves his pursuit of freedom and democracy.

    [4] Transcript 21 March 2024 at T16.29

45. The applicant also made submissions to the effect that he was being treated with a double-standard because:[5]

    If they treat me the same way they treat Dalai Lama and Li Congu and Wong Dang, and they would compromise to Communist Party and they would not be persecuted.  But why does the international society encourage them to fight against the Communist Party.  But why do they encourage me to go back and compromise to the Communist Party?  That’s double standards.

    [5] Transcript 21 March 2024 at T12.44 to T13.7

1. The first respondent submitted that, on the face of the Tribunal’s reasons for decision, it is apparent that the Tribunal considered the applicant’s claims but was not satisfied that there was a real chance the applicant would suffer serious harm on return to China for reason of his political opinions or for any other reason, or that there was a real risk he would suffer significant harm.  The Tribunal’s findings are said by the first respondent to have been open to it, on the evidence and material before it, and for the reasons it gave.

2. The first respondent says that the Tribunal complied with its statutory obligations as set out in Division 4 of Part 7 of the Act, that the applicant was invited to appear before the Tribunal to give evidence and present arguments, and he attended such a hearing on 28 November 2018 assisted by an interpreter.

3. In AQH16, being the applicant’s previous judicial review proceedings,[6] the FCCA found error in the first Tribunal decision, being that the first Tribunal assessed whether there were “substantial grounds” for believing that the applicant had a well-founded fear of persecution for reasons of his political opinion, rather than considering whether there was a real chance that the applicant would be persecuted by reason of his political opinion and whether that persecution involved serious harm and not significant harm (see AQH16 at [25] and [36]). In remitting the matter, the FCCA also noted its concern as to whether the Tribunal engaged with the question of whether the applicant had a well-founded fear of persecution because he was required to conceal his political beliefs (see AQH16 at [37]).

   [6] See [8] above

4. Unlike the error which was identified in relation to the first Tribunal decision, the Tribunal as reconstituted correctly identified the relevant issues and discharged its statutory task of reviewing the application on the merits by interpreting and applying the statutory criteria in ss 36(2)(a) and 36(2)(aa) of the Act (which it correctly set out at [8] to [12] of its reasons and applied at [44] and [46] (CB 234 to 235).

5. Similarly, the further concern identified in AQH16 at [37] which has not arisen in the second Tribunal decision was that the Tribunal’s reasons clearly demonstrate consideration of whether the applicant had a well-founded fear of harm because he would have to modify his behaviour to alter his political beliefs or conceal his true political beliefs: s 5J(3)(c)(ii) of the Act. The second Tribunal did not accept that the applicant would hide or compromise his true political views to avoid persecution in China (CB 234 at [42]). Rather, the Tribunal expressly stated that it was

   “not satisfied that the applicant will be required to modify his behaviour so as to avoid a real chance of serious harm to him for reason of his personal or political opinions”

   (CB 234 at [42]).

6. There is nothing on the face of the Tribunal’s decision to obviously give rise to, or contextualise, an allegation that the Tribunal failed to take into account a relevant consideration. To the extent that the applicant might be taken to allege that he was denied procedural fairness, similarly, there is nothing arising on the face of the Tribunal’s decision, nor in the Court Book, to indicate that the Tribunal conducted itself in any way beyond the bounds of Part 7 of the Act, which, by reference to s 422B of the Act, constitutes an exhaustive statement of the natural justice hearing rule for the purposes of Tribunal proceedings in respect of protection visas.

7. In respect of the applicant’s written submissions which were received as part of Exhibit “1A” at hearing, the applicant has made submissions to the effect he has no legal travel document and therefore he says that he is stateless. The applicant also complains about the rejection of his application for residency on humanitarian grounds as being unfair, and says he does not accept the reasons the Department gave. If by referring to the Department the applicant is seeking to challenge the delegate’s decision, this Court does not have jurisdiction to review that decision, being a primary decision for the purposes of s 476(2)(a) of the Act.

8. Complaints were also made at the hearing before me which are not raised in the application itself, suggesting that the Tribunal failed to consider whether the applicant would, on return to China, modify his behaviour so as to avoid a real chance of persecution and that this somehow would satisfy s 5J(3) of the Act. While not referring to s 5J(3) specifically, the second Tribunal decision did substantively address the applicant’s level of past and present behaviour, and concluded that it was not persuaded that he would be sufficiently motivated to engage in a level of political discourse or activity which would be likely to attract the adverse attention of the authorities (CB 234 at [42]).

9. Specifically, the Tribunal found that, based on the applicant’s behaviour to date, it was not satisfied that he would be required to modify his behaviour so as to avoid a real chance of serious harm to him for reasons of his personal or political opinions. As such, notwithstanding the fact that there is no express reference to s 5J(3) of the Act, I am satisfied that the Tribunal did substantively consider this aspect of the applicant’s claims. However, it was not satisfied that the applicant was a person to whom Australia owed protection obligations.

   CONCLUSION

10. The applicant has failed to establish error in the decision of the Tribunal by the ground raised in the originating application, the additional ground contained in the Affidavit document filed in support thereof, nor by any submission made to the Court at hearing.  Overall, and having read the decision for myself, I am satisfied that the decision of the Tribunal is not affected jurisdictional error. 

11. Absent a jurisdictional error, the decision is therefore a privative clause decision and shall be dismissed.  I will so order.  I will hear the parties as to costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       10 May 2024