Ahd17 v Minister for Immigration
[2019] FCCA 2545
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHD17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2545 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (“the Tribunal”) – whether the Tribunal failed to afford the applicant procedural fairness – whether the standard of interpretation at the Tribunal hearing prevented the applicant from giving evidence – whether the applicant was given reasonable opportunity to demonstrate their beliefs – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 476 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) ALR 609; (2007) 96 ALD 1 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744; (2005) 87 ALD 357 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IPR 263; (1990) 33 IR 263 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413; (2016) 253 FLR 496 Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; (2000) 64 ALD 395 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 |
| Applicant: | AHD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 181 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 September 2019 |
| Date of Last Submission: | 4 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Ms. A Wong |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The application made on 19 January 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 181 of 2017
| AHD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 January 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 December 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB”).
Background
The applicant is a citizen of China (item 21 CB 15). He arrived in Australia on 28 September 2014 (item 29 CB 15). The applicant applied for a protection visa. This was received by the Department on 18 November 2014 (CB 2–CB 29). The applicant attended an interview with the delegate on 29 June 2015 (CB 73). The delegate refused the grant of the visa on 8 July 2015 (CB 69–CB 81). The delegate found that the applicant did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) of the Act for the grant of the visa. (CB 79 and CB 81). The applicant applied to the Tribunal to review the delegate’s decision. This application was received on 11 August 2015 (CB 83–CB 89 see also CB 90). The applicant attended a hearing before the Tribunal on 24 November 2016. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa on 15 December 2016.
The Applicant’s Claims for Protection
The applicant claimed to fear harm on the following basis, as outlined in his written statement which accompanied his protection visa application at (CB 32–CB 33). In 2009 the applicant was introduced to Falun Dafa by a colleague. The applicant would practise Falun Gong one to two times a week. Between 2011 and 2013 the applicant visited both Hong Kong and Macau numerous times. Almost every time the applicant visited Macau he visited Falun Gong practitioners at a Falun Gong practice location. During these visits he discussed and shared experiences with the other practitioners about Falun Dafa study and the practice of Falun Gong.
The applicant claimed that on 12 July 2014 he was practising Falun Gong with four other practitioners at his colleague’s house. Four policemen entered the house, and the applicant escaped through the back door and was not caught. Following this event the applicant did not return to work or his house and hid at a friend’s house until he left to come to Australia. The applicant was scared that the other four practitioners would reveal his identity to the police. The applicant was concerned that he would be persecuted for practising Falung Gong. The applicant’s brother assisted him in obtaining a visa to come to Australia.
Since arriving in Australia the applicant visits the Botanic Gardens every weekend “to study Dafa and practise Falun Gong together with other practitioners” (CB 33). The applicant also participates in “Falun Dafa activities in Hurstville” (CB 33). The applicant claimed that pictures have been taken of him practising Falun Gong while at the Botanic Gardens.
The applicant was concerned about “being controlled and monitored by the public security organisations and related agencies in China” (CB 33).
The following claims were identified by the Tribunal (see [12]) of the Tribunal’s decision record:
“At the Department interview the applicant stated in addition to his claims in his PVA that he:
· only accessed Falun Zhuan since arriving in Australia and had not read any other Falun Gong materials
· he believes in Buddhism and in God
· when the police officers broke into the house via the front door, 2 officers attended to the 4 fellow practitioners his friend’s wife and her mother held back the 2 police officers by hugging them
· he escaped via a door in the longue room and out the front door
· police were searching for him 2 or 3 times at his work, several times at his home since July 2014”.
The Tribunal also noted that following the interview with the delegate the applicant sent two documents to the Minister’s Department which were a statement and certificate of Quitting the Communist Party, dated 16 June 2015 ([13] CB 111 see also CB 61–CB 63).
The Minister’s written submissions provide a comprehensive, and importantly a fair, summary of the Tribunal’s reasoning:
“15. The Tribunal accepted that the applicant was a national of China and that China was his receiving country (CB 115, [40]). However, the Tribunal did not accept that the applicant was “a witness of truth”. It found the applicant had given inconsistent evidence about: the incident on 12 July 2014: in relation to why he did not inform the Department that the four practitioners were arrested and detained: and in relation to how he was able to escape (CB 115-116, [44]-[47]).
16. The Tribunal accepted that the applicant had some “basic knowledge” about Falun Gong exercises, and some knowledge about Zhuan Falun, however his knowledge was not of the level that would have been expected of a person who claimed to have practiced Falun Gong since 2009 (CB 116, [48]). The Tribunal did not accept that a Falun Gong practitioner who had practiced for about five years would have confused the first and fifth exercise and that he would not have known the verse that is spoken or listened to when exercising (CB 116, [50]). The Tribunal also did not accept that a Falun Gong practitioner who had read Falun Zhaun on a number of occasions would be unable to explain that the teachings regarding meat were about “letting go of what a person was attached to rather than explaining that eating meat was a personal choice” (CB 116, [52]).
17. The Tribunal rejected the applicant’s explanation about how he was able to avoid arrest and/or detention when the authorities had arrested four other Falun Gong practitioners on the basis that he would not have been able to exit China legally with a passport issued in his own name, via an international airport, where passports are checked against the database. Further, the Tribunal found that if the Chinese authorities waited at least two months or more before entering information regarding wanted persons of interest who are Falun Gong practitioners, it would be known to independent sources, such as DFAT and US State Department and the Falun Dafa Association who report extensively about the treatment of Falun Gong practitioners. (CB 117, [55]).
18. The Tribunal rejected the entirety of the applicant’s claims on the basis of the identified inconsistencies and issues with the applicant’s evidence (CB 117, [56]). The Tribunal was not satisfied that the applicant was perceived to be or was a Falun Gong follower, practitioner, sympathiser or activist and did not accept that he was detained or harmed in any way (CB 117, [57]). The Tribunal was satisfied the applicant had no adverse or political profile in China prior to departing for Australia and did not flee China fearing harm. The Tribunal found the applicant came to Australia to visit his permanent resident brother (CB 117, [58]).
19. The Tribunal accepted that the applicant had attended some Falun Gong activities in Sydney and had his photographs taken at those functions. However, given its rejection of the applicant’s claim to be a genuine and committed Falun Gong practitioner, it found that this conduct was only undertaken for the purpose of strengthening his claims to be a refugee and disregarded this conduct under s 91R(3) of the Act (CB 118, [60]).
20. Based on the Tribunal’s findings that the applicant was not a genuine practicing Falun Gong practitioner and that he had not practiced Falun Gong in China, the Tribunal was satisfied that the applicant would not practice Falun Gong on return to China (CB 118, [61]). Accordingly, the Tribunal was not satisfied that the applicant faced a real chance of serious harm on return to China (CB 118, [62]) and concluded that the applicant did not satisfy the criterion in s 36(2)(a) of the Act (CB 118, [63]).
21. The Tribunal accepted that the applicant had photos taken of himself in Sydney at Falun Gong functions/demonstrations but found there was no evidence to suggest that the photographs had been published on the internet or any media outlet, or that the applicant could be identified. The Tribunal accepted that these had been taken as proof, and that the chances of the applicant being identified as having attended Falun Gong activities in Australia were remote (CB 118, [64]). On the basis of its earlier findings that the applicant had no adverse religious or political profile in China, the Tribunal did not accept that his details would be on the internet or that he would be located when he presented his ID or passport. The Tribunal was satisfied that the applicant was not a person of interest to the Chinese authorities when he left China (CB 118, [65]). The Tribunal considered the document provided by the applicant disavowing his affiliation to the Chinese Communist party (CB 118, [66]) but did not accept that the Chinese authorities would be able to identify the applicant from this document without any ID or passport number (CB 119, [68]). The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm if he returned to China and did not meet s 36(2)(aa) of the Act (CB 119, [70]).”
The grounds of the application
The grounds of the application to the Court are in the following terms:
“1. AAT’s decision is not fair
2. The interpreter did not interpret some of the AAT member’s words clearly.
3. The member asked me to demonstrate the first set of exercise but I demonstrated the second set due to misunderstanding. The AAT member did not give me a chance for me to demonstrate the second set of Falun Gong exercises.”
Before the Court
Various orders were made by a Registrar of the Court providing the applicant with the opportunity to file any amended application, further evidence by way of affidavit and written submissions. At the time of the hearing of the application nothing further had been filed by the applicant.
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The interpreter translated the Minister’s written submissions for the applicant.
The applicant submitted that at the Tribunal hearing the interpreter told him to demonstrate the “fifth set” of Falun Gong sequences, but that the Tribunal member had requested for the “first set”. Further, it “was a bit hard to understand the interpreter.”
As set out above the application to the Court was made on 19 January 2017. On 1 June 2017 a Registrar of the Court made orders which amongst other things gave the applicant the opportunity to file any additional evidence by way of affidavit, including specifically a transcript of the Tribunal hearing.
The applicant has not done so in the 27 months available to him. The Registrar’s orders were made by consent. When asked by the Court why he did not provide a transcript the applicant made no reference to not having understood the order made by the Registrar. He simply stated that he did not have a transcript.
I explained to the applicant that, in essence, there were two things that the Minister’s solicitor had put against him at the hearing before the Court.
One, the lack of evidence in the form of a transcript of the Tribunal hearing. The applicant gave no explanation as to why he did not, or could not, obtain such a transcript in the time available to him.
Two, the lack of merit in the grounds of the application to the Court. The applicant’s response was to repeat his concerns as explained above, and to complain that the Tribunal did not give him a further opportunity to demonstrate the relevant Falun Gong exercise.
The applicant before the Court was legally unrepresented. He told the Court that he had been assisted in the drafting of the grounds of the application to the Court (and the terms of the accompanying affidavit) by a registered migration agent. It appeared from what he said this was a “Ms Shi” who represented him before the Tribunal (see CB 85).
However, there was nothing from the application to explain why he did not seek legal advice in the time available to him with a view to amending his grounds, or to provide relevant evidence.
Consideration
Ground one of the application asserts that the Tribunal decision was not fair. This is repeated at [16] of the applicant’s affidavit filed with his application. Neither the ground, nor the affidavit, provide any particulars to this complaint.
The Tribunal’s statutory obligation to provide fairness is focused on the processes adopted by the Tribunal, and its conduct in the review. Division 4 of Part 7 of the Act exhaustively sets out the Tribunal’s obligations in this regard.
The applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act. On the evidence before the Court it was a meaningful opportunity to discuss the issue in the review and for the applicant to provide his evidence (see further below).
As set out above, there is no transcript of the Tribunal hearing in evidence before the Court. The Tribunal’s account of what occurred does state that the Tribunal put certain information to the applicant pursuant to “s.424aa of the Act” (see [38] at CB 114).
There is no such section in the Act. In context it appears that the Tribunal was referring to s.424AA which is a mechanism by which the Tribunal can put information to an applicant, pursuant to s.424A(1) of the Act, orally at a hearing, which it considers to be the reason, or a part of the reason, for affirming the delegate’s decision.
At [38]–[39] (CB 114–CB 115) the Tribunal reports that it put to the applicant certain inconsistencies between what he had put in his protection visa application, what he told the delegate at the interview, and what he told the Tribunal at the hearing.
Inconsistencies in an applicant’s various accounts of his claims are not, of themselves, information for the purposes of s.424A(1) of the Act. (See SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]–[18]). Thus, the Tribunal was not obliged to utilise s.424AA to discharge any obligation pursuant to s.424A(1). Nonetheless there is no legal error in the Tribunal acting in this way.
Further, if the Tribunal was concerned that what the applicant told the delegate at the interview was information that needed to be put to him, then in the circumstances of this case, that information was excluded from the operation of s.424A(1) by virtue of s.424A(3)(b) of the Act.
What the Tribunal referred to at [38] of its decision record was the applicant’s account, as given to the delegate at the interview, as to the claimed incident on 12 July 2014 when he said police raided a Falun Gong session at a friend’s house at which he was present.
What the applicant told the delegate at the interview in this regard is set out in the delegate’s decision record (see at CB 76.7–CB 76.9). The applicant, who was represented by a registered migration agent at the time, gave the decision record to the Tribunal for the purposes of the review (CB 89.3 and [3] at CB 110). Such information therefore, was exempt from the obligation in s.424A(1) of the Act by the operation of s.424A(3)(b) of the Act (NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744).
It is trite to say that the notion of procedural fairness, generally, is directed to the relevant process not necessarily to the outcome, or decision, made by an administrative decision maker, in this case the Tribunal. An applicant is entitled to a fair process, not necessarily the “correct” outcome (Attorney-General (NSW) v Quin [1990] HCA 21).
It would appear that what the applicant means by ground one is that the Tribunal should have believed him and given him a protection visa.
There is nothing in the evidence before the Court to indicate that the Tribunal’s adverse credibility findings are susceptible to challenge on the basis of any relevant legal error.
The Tribunal’s findings were logically available and reasonably open to it on what was before it, for the reasons that it gave. The Tribunal comprehensively engaged with the applicant’s claims and evidence. It gave a conscious and meaningful consideration to those claims (CQG15v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]–[38]). The applicant was put on notice by the delegate’s decision that the credibility of his account was an issue. The Tribunal also squarely put this to the applicant at the hearing.
The applicant’s complaint now that the decision was not fair, in the circumstances, does not rise above a disagreement with the Tribunal’s findings and conclusion. The applicant seeks impermissible merits review. Ground one is not made out.
Ground two asserts that the interpreter at the Tribunal hearing did not interpret some of the Tribunal member’s words “clearly”. The applicant, in effect repeated this before the Court.
To make out a ground relying on interpretation issues at the Tribunal hearing the applicant would need to show that the standard of interpretation at the Tribunal hearing was so inadequate that he was thereby prevented from giving his evidence to the Tribunal. Further, and in the alternative, that there were errors made in the interpretation at the hearing that were material to the Tribunal’s conclusion, and even further adverse to him (Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230; Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376; Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 and SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142).
As set out above, despite opportunity to do so the applicant has, provided no evidence to support any claim of interpretation errors. Ground two is not made out.
Ground three takes issue with the Tribunal member’s request at the hearing that the applicant demonstrate what is said to be the “first set” of Falun Gong exercises. The ground asserts that he demonstrated the “second set” of exercises. In contradiction of this the ground also complains that the Tribunal did not give him the opportunity to demonstrate the “second set” of exercises.
As set out above the applicant has not provided any transcript of the Tribunal hearing to the Court. On the evidence that is before the Court the Tribunal gave the applicant the opportunity to explain his Falun Gong belief:
“25. Asked what it meant to be a Falun Gong ‘practitioner’, he said that he is able to enhance himself in many aspects. It also makes him healthier physically. When prompted, he said it is positive for many aspects of human beings and n in general. Explaining to the Tribunal why he considered Falun Gong to be so important to him that he would practice it, he said that after practising it he felt that his physical condition improved a lot. Secondly his attitude toward other people has become more friendly now more ready to help them. He does not pursue money now.”
[Error in the original.]
Further the applicant was given the opportunity, with reference to a “pivotal” Falun Gong text, to explain Falun Gong practices and beliefs towards eating meat. The Tribunal’s finding that a Falun Gong practitioner who had read this text would be able to explain the Falun Gong teaching relating to the eating of meat was reasonably open to it on what was before it ([52] at CB 116).
In relation specifically to demonstrating Falun Gong’s various exercises the Tribunal reports:
“24. When asked when he was practising Falun Gong what he did, he said that “we listened to the music and we practiced Falun Gong”. This consisted of 5 sets of movements and “we did last one called meditation”. He was asked to do the 1st exercise and to recite the verse that was said when doing the first exercise. The applicant was observed doing the 5th exercise as he sat and crossed his legs. It was put to him that the 1st exercise is the Buddha stretching 1000 hands. When asked for the verse- he said it is “stretch”.”
Before the Court the applicant submitted that there was a difference between what was written in the Falun Gong texts, and what he was taught about Falun Gong practice. It appears that, he gave a similar explanation to the Tribunal (see at [52] CB 116).
The Tribunal was not persuaded by the applicant’s explanation. Its finding in this regard was reasonably open to it on what was before it. No legal error is indicated here.
In all, the applicant was given a reasonable opportunity to demonstrate his knowledge of Falun Gong beliefs and practices. That he was unable to satisfy the Tribunal that he was a genuine Falun Gong practitioner does not reveal legal error in these circumstances, and where the Tribunal’s findings were all reasonably open to it. Ground three is not made out.
Conclusion
No jurisdictional error is revealed by the grounds of the application. It is therefore appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 13 September 2019
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