Ahj17 v Minister for Immigration
[2017] FCCA 1867
•8 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHJ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1867 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Waterford v The Commonwealth (1987) 163 CLR 54 Reg v The District Court; Ex parte White (1966) 116 CLR 644 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 |
| Applicant: | AHJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 193 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 8 August 2017 |
| Date of Last Submission: | 8 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2017 |
REPRESENTATION
| Applicant appeared in person with an interpreter |
| Solicitors for the Respondents: | Ms Chloe Hillary DLA Piper |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 193 of 2017
| AHJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 20 January 2017, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 4 January 2017 (“the Tribunal”).
On 1 June 2017, the applicant attended a directions hearing before a registrar of this Court with the assistance of an interpreter. On that occasion the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application.
I note that at the directions hearing the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 of the Rules provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the Tribunal’s decision, as follows:
“Background
2. The applicant is a male citizen of China, who applied for a Protection visa on 8 October 2014, the basis of his claims to fear harm in China as a result of conflict arising out of the purported demolition of his house.
3. The delegate refused the application on 9 June 2015.
4. The applicant appeared before the AA T on 21 November 2016 to give evidence and present arguments.
The decision of the Tribunal
5 The AAT did not find the applicant to be a credible witness because it found he gave inconsistent and confused evidence on core aspects of his protection claims, (23].
6 The AAT found the following aspects of the applicant's claims to be inconsistent as between his evidence given at the AA T hearing and in the written material in his protection visa application:
6.1 Whether the government intended to build a new road, or factories and roads, and whether they wanted to appropriate the houses or the farmland, (25].
6.2 Whether or not the applicant had any involvement with the negotiations, [26].
6.3 The details surrounding the fights that occurred, (27].
6.4 The details about what land was being acquired and who it belonged to, (29].
7 The AAT found these inconsistencies significant and that they substantially undermined the credibility of the applicant's claims.
8 The AAT found that the applicant gave inconsistent evidence regarding the identity of the officials involved, although it noted that this was not as significant, [28].
9 The AAT found that the applicant gave inconsistent evidence at the hearing about the bulldozer or bulldozers. The AAT found that the applicant's evidence in this regard was confused and implausible, [30].
10 The AAT also found the applicant's evidence at the hearing that he did not know whether or not the factories had been built in his village to be implausible, [31].
11 The AAT considered the photographs submitted, which were said to be of the applicant's demolished house. The AAT found that there was nothing depicted to identify the house as having been bulldozed, or that the demolition or deconstruction was against the will of the owner/resident, or that it was a residence, or that it was the applicant's former residence. The AAT did not accept that the photographs were of the applicant's home after it had been bulldozed, [32].
12 The AA T accordingly rejected the applicant's claims in their entirety, [33].”
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
The applicant confirmed that he had no further documents to provide to the Court in support of his application and confirmed that he continued to rely on the grounds identified in his application filed on 20 January 2017. Those grounds are as follows:
“1. The AAT did not take into consideration that as a victim during the incident described in the claim, at time it was often very confusing to realise which were true statements and which ones were lies by the authorities. This and also that some details might be unclear due to the chaos.
2. The AAT did not even make any investigations behind the evidence that I have provided and refused outright to take them into consideration.
3. I stated that the land being targeted belonged to my family and myself, but there were also neighbouring lands owned by other people who were targeted by the authorities.”
(Errors in original)
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Each of the grounds of the applicant’s application was interpreted for the applicant and he was invited to say whatever he wished in support of each of the grounds and in support of his application generally.
I said to the applicant that I did not understand the complaint he was making in Ground 1 regarding the authorities to whom he was referring. The applicant responded that the authorities were the local council in China.
I asked the applicant what were the lies of the authorities to which he referred. The applicant declined to answer anything further, beyond saying, “I gave evidence to the Tribunal and that information was consistent with what I told the Tribunal,” and that the Tribunal chose not to believe him without reasons.
Ground 1 was otherwise unsupported by particulars, evidence or oral or written submissions.
I understand Ground 1 to be a general complaint about the adverse credibility findings made by the Tribunal in respect of the applicant’s claims.
The Tribunal in its decision record identified the written claims made by the applicant in his protection visa application and then summarised the information provided by the applicant at his interview with the Department of Immigration and Border Protection.
A delegate of the first respondent found that the applicant was not a person to whom Australia has protection obligations and found the applicant’s claims not to be credible.
On 12 October 2016, the Tribunal sent the applicant a letter inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues under review. The letter stated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to send any further evidence and material that he wished the Tribunal to consider.
The applicant then attended a hearing before the Tribunal and the Tribunal summarised in detail the information provided by the applicant. The applicant’s claims appeared to arise from alleged land acquisition in China in 2012 and fights that the applicant took part in in protest to the acquisition.
Ultimately, the Tribunal did not find the applicant to be credible and found that he gave inconsistent and confused evidence on core aspects of his protection claims. The Tribunal noted the various iterations of the applicant’s claims as they evolved from his original statement made in support of his protection visa application.
The Tribunal then identified particular inconsistencies it had concerns with and noted the applicant’s responses when those concerns were raised with him at the hearing. The Tribunal found that much of the information the applicant gave to be contradictory and inconsistent and parts of the information to be implausible.
Ultimately, the Tribunal comprehensively rejected the applicant’s claims that his house or farm land were made subject to acquisition for inadequate compensation; that bulldozers were sent to his farmland to destroy his crops; that the applicant was involved in any fights with the village officials or their people or with police; or, that the applicant is wanted by the Public Security Bureau. The Tribunal did not accept that the Public Security Bureau had put the applicant on a watch list and did not accept the applicant’s house was bulldozed in early 2016 by village officials.
The Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Ground 1 appears more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, appear to invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
In the circumstances, Ground 1 does not appear to identify any jurisdictional error on the part of the Tribunal.
Ground 2 asserts that the Tribunal did not investigate behind the evidence provided by the applicant.
In support of Ground 2, the applicant said that he gave photographs to the Tribunal who looked at them and said they were no longer important and that the applicant did not understand why the Tribunal did not believe him.
The Tribunal, in its decision record, referred to photographs submitted by the applicant and what those photos identified. The Tribunal accepted that the photographs were of a building that showed signs of partial demolition, but that there was nothing depicted to identify the building as having been bulldozed or that the demolition or deconstruction was against the will of the owner or resident or that it was a residence or that it was the applicant’s former residence.
The Tribunal did not accept the explanation given by the application for the demolition of his house as plausible and rejected his explanation that the village authorities had come to his home and bulldozed it a year and a half after he left China in revenge for the fight alleged by him in February or March 2014.
The Tribunal did not accept that the photographs were of the applicant’s home after it had been bulldozed by village officials and did not accept that the applicant’s house had been bulldozed.
In the circumstances, the Tribunal considered the photographs provided by the applicant but was not persuaded that they were corroborative of the applicant’s claims. The Tribunal provided reasons why it placed no weight on the photographs as corroborative of the applicant’s claims.
The Tribunal’s conclusions in respect of the photographs would appear to be open to it for the reasons it gave.
In relation to the applicant’s complaint in Ground 2 that the Tribunal should have investigated his claims, it is well-established that there is no general obligation on a Tribunal to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25] per Heerey, Nicholson and Mansfield JJ; W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 at [74]-[78] per Nicholson J; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21] per Jacobson J).
Having found the applicant’s claims to be so largely confused and inconsistent, the Tribunal’s decision record suggests that the applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.
In the circumstances, Ground 2 does not appear to identify any jurisdictional error on the part of the Tribunal.
Ground 3 is a bare statement of the applicant’s claim and does not by itself identify any complaint capable of review by this Court. Ground 3 was unsupported by any particulars, oral submissions or written submissions by the applicant.
While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 4 January 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 15 August 2017
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