AIP17 v Minister for Immigration
[2019] FCCA 2586
•16 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIP17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2586 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to provide evidence to support its findings – whether the Tribunal failed to consider the matter in accordance with s.424 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the matter in accordance with s.424A of the Migration Act 1958 (Cth) – whether the Tribunal failed to disclose the material on which it based its decision – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 418, 424, 424A, 425, 476, Div 4 Part 7 |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411; (2005) 87 ALD 512 |
| Applicant: | AIP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 248 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 September 2019 |
| Date of Last Submission: | 6 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms K. Hooper |
| Legal Representative for the Respondents: | Ms A. Davyskib |
| Solicitors for the Respondents: | Minter Ellison 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 25 January 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 248 of 2017
| AIP17 |
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 25 January 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 January 2017 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed, and tendered, by the Minister (Court Book – “CB” – “RE1”), and the affidavit of Anna Davyskib, solicitor, made on 30 August 2019, with annexures.
Background
The applicant is a citizen of China (item 20 at CB 13, and CB 29). He arrived in Australia on 27 March 2014 (item 28 at CB 14). He applied for a protection visa on 26 June 2014 (CB 1). He claimed to fear harm on return to China on the basis of his religion, specifically his attendance at an underground, or house, church in China.
The delegate identified a number of concerns about the credibility of the applicant’s claims as between his written statement provided with the visa application, and what he said at the interview with the delegate.
The delegate was not satisfied that the applicant had attended an underground church in China, or that he had been of adverse interest to the Chinese authorities. The delegate also found that based on country information, even if the applicant were to attend an underground church in the future, in the same fashion as he had claimed to have done in the past, it would be “unlikely” that he would attract the adverse interest of the authorities (CB 79.6).
The Tribunal
The applicant sought review by the Tribunal on 12 August 2015 (CB 87). He was assisted by a registered migration agent (CB 88). He attended a hearing before the Tribunal on 21 December 2016 (CB 119).
The Tribunal affirmed the delegate’s decision because it did not believe that the applicant had been truthful in his claims and evidence. The Tribunal’s findings of fact are explained as follows ([53] – [54] at CB 136 to CB 137):
“53. After considering all of the relevant evidence I did not find the applicant to be a truthful or a credible witness. His responses to most questions during this hearing were extremely hesitant and vague. More significantly, as set out above, there are a number of significant inconsistencies in the evidence he provided regarding his involvement in an unregistered church in China and the problems which this caused him and asked to comment on these discrepancies he declined to say anything. As also set out above, when asked about his attendance at church in Australia he could not recall the name of the church he attended and described it as a Catholic Church when the supporting letter he provided to the Department states that it is an Anglican Church. Furthermore, despite claiming to have attended church regularly for two years and to have studied the Bible every week, he clearly knew almost nothing about Christianity or the Bible. If the applicant was had attended church and studied the Bible weekly for two years I believe he would have had a greater knowledge of Christianity and the Bible. Finally, if the applicant had a genuine commitment to Christianity I believe that he would have been baptised.
54. I do not accept that the applicant attended a house church in China. Furthermore, while I accept that he has attended church on occasion since arriving in Australia, I do not accept that he has attended weekly services for some two years or that he is or ever was a genuine or committed Christian or that he would attend a house church or any other church if he returned to China. I find that he attended church in Australia primarily for the purpose of obtaining protection.”
[Error in the Original.]
In relation to his claim to have attended church in Australia the Tribunal found ([55] at CB 137):
“55. As discussed above, I find that the applicant concocted his claims regarding his participation in a house church in China. Furthermore, I do not accept that he attended church in Australia out of a genuine commitment to Christianity or that he would continue to attend church if he returned to China.”
Ultimately the Tribunal found that the applicant did not satisfy either of the criteria for the grant of a protection visa (s.36(2)(a) and (aa) of the Act). (See at [58] – [62] at CB 137 to CB 138).
“Is the applicant entitled to protection in Australia?
…
58. After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there is a real chance that he will suffer serious harm amounting to persecution in the reasonably foreseeable future for a Convention reason if he returns to China. I do not accept that he has a well-founded fear of persecution for a Convention reason and I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he therefore does not satisfy the criteria set out in s.36(2)(a).
59. The applicant’s application for complementary protection relies on the same claims as those put forward in his refugee application. As discussed above, I do not accept that he attended a house church in China or that he is a Christian or that he has attended church weekly for some two years in Australia or that he will attend church of any kind or practice Christianity in any way if he returns to China. Furthermore, while I accept that he has attended church occasionally while in Australia, for the reasons set out above, I do not accept that there is a real risk that he will suffer significant harm because of this.
60. After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to China, there is a real risk that he will suffer significant harm.
CONCLUSIONS
61. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
62. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”
Before the Court.
The grounds of the application before the Court are as follows:
“1. The Tribunal failed to provide evidence in support of its findings.
2. The Tribunal failed to consider the matter in accordance with s424.
3. The Tribunal failed to disclose the material on which the Tribunal based its decision.”
A Registrar of the Court made various orders in this matter. These included (on 25 May 2017) giving the applicant the opportunity to file any amended application, further evidence by way of affidavit, and written submissions. At the time of the hearing, nothing further had been filed by, or on behalf of, the applicant.
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.
The applicant submitted that he had nothing to say. Even when pressed, the applicant was unable to assist with any explanation of his grounds, or make any further complaint about the Tribunal’s decision.
Consideration
Ground 1 asserts that the Tribunal failed to provide evidence to support its findings.
The ground misunderstands the statutory task set for the Tribunal. The Tribunal was required to reach a requisite level of satisfaction on the material put before it such that the visa must be granted. If the Tribunal could not reach that level of satisfaction the visa must be refused (s.65 of the Act and Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [9], Minister for Immigration & Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [36], [37] - [38], SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [14], [15] - [16], NAST v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16], [17], and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
It was for the applicant to put forward his claims and evidence. The Tribunal’s obligation was to give the applicant a fair and meaningful opportunity to do that within the statutory framework set out at Division 4 of Part 7 of the Act.
The Tribunal was not required to have evidence to rebut the applicant’s claims, before it could reject those claims (Velauther Selvadurai v the Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105). Nor was the Tribunal required to uncritically accept what the applicant put or said to it (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).
The Tribunal assessed the applicant’s evidence, and made findings of fact in relation to that evidence and country information before it. The Tribunal’s findings were all reasonably open to it for the reasons it gave, and were probative of the material before it.
The Tribunal’s adverse credibility finding, which was central to its decision, and the findings which informed it, do not reveal any basis for challenging those findings in light of relevant authorities. (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J).
The findings were probative of the material before the Tribunal, and arose logically, and rationally, from that material. There is nothing to indicate that the Tribunal misunderstood the applicant’s claims or evidence. The Tribunal consciously engaged with the material in the requisite sense. The applicant was given the opportunity to explain the matters which gave rise to the Tribunal’s concerns with his evidence. (See CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CQG15”) generally, and at [37] – [38]).
As set out above, the Tribunal did not accept that the applicant had attended a house church in China ([54] at CB 137). As part of the reasoning leading to this finding the Tribunal tested and considered the applicant’s claimed knowledge of Christianity. I agree with the Minister that there is nothing to indicate that the Tribunal imposed any arbitrary standard of doctrinal knowledge (SZLSP v Minister for Immigration and Citizenship [2012] FCA 451).
In all, contrary to the assertion in the applicant’s ground, the Tribunal did rely on evidence to reject the applicant’s claim to have practiced Christianity in China. This was the applicant’s own evidence. The Tribunal explained why the applicant’s evidence was not such as to enable it to reach the requisite level of satisfaction so that the visa must be granted. In all, ground 1 is not made out.
Ground 2 asserts that the Tribunal failed to consider the matter in accordance with s.424 of the Act. No particulars are provided. The applicant was unable to explain what was meant by this ground.
Section 424 provides that the Tribunal has the power to “get” any information that it considers relevant. As the Minister submits, it is a permissive power to aid the Tribunal in the exercise of its review function.
The Tribunal was not compelled to utilise this power. Nor does the applicant explain how it may have been relevant to this case. As the Minister submits, this is not a case where the Tribunal failed to make an: “…obvious inquiry about a critical fact, the existence of which [was] easily ascertained…” (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]).
The Minister, fairly, submitted that the applicant may have meant to refer to s.424A(1), and not s.424. Section 424A(1) compels the Tribunal to give to the applicant information which it considers would be the reason, or a part of the reason, for affirming the decision under review. Section 424A(3) of the Act excludes certain information from this obligation.
At [49] (CB 136) the Tribunal stated:
“49. I noted that the applicant had come to Australia to attend the graduation of a relative and observed that it was very convenient for his case that this took place shortly after he claims to have come to the attention of the police in China. The applicant said that he did not wish to comment.”
The evidence of Ms Davyskib annexes copies of documents from the Minister’s departmental file concerning the applicant’s relative, and revealing that the applicant was granted leave from his employer to visit Australia.
Such information does not fall within any of the exceptions set out at s.424A(3) of the Act. However in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) the High Court explained what was meant by the term “information” as it appears in s.424A(1). (See SZBYR at [17] – [18]).
There is no evidence before the Court that these documents were given to the Tribunal by the Secretary to the Minister’s Department pursuant to s.418(3). Nor does the Tribunal’s decision record make specific reference to these documents, or that it obtained information from these documents.
However, even if what the Tribunal “noted” at [49] (CB 136) was sourced from these documents, the information as to why the applicant came to Australia was not information that independently, and of itself undermined, denied, or rejected the applicant’s claim to a protection visa (SZBYR at [18]). In all, ground 2 is not made out.
Ground 3 asserts that the Tribunal failed to disclose the material on which it based its decision. Again no particulars are provided.
If this is an attempt to complain Tribunal did not explain its decision with reference to relevant material, that must be rejected. As set out above, the “material” on which the Tribunal based its decision was the applicant’s written statement, what he told the delegate, his oral evidence to the Tribunal and country information. All of this was set out in the decision record.
If, however, the ground seeks to complain that the Tribunal failed to put the applicant on notice of the “material” on which it would make its decision, then the Tribunal’s procedural fairness obligation is set out exhaustively in Division 4 of Part 7 of the Act.
In this regard, s.424 of the Act was not utilised by the Tribunal, s.424A of the Act was not enlivened, and the applicant was invited to a hearing pursuant to s.425 of the Act.
Further, in relation to s.424A of the Act, to the extent that the Tribunal referred to what the applicant told the delegate at the interview, then that information was contained in the delegate’s decision, which the applicant gave the Tribunal for the purposes of the review (see CB 88, and (SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890, SZMPT v Minister for Immigration and Citizenship [2009] FCA 99; (2009) 107 ALD 121, SZLPO v Minister for Immigration and Citizenship (No.2) [2009] FCAFC 60; (2009) 177 FCR 29 and SZTPW v Minister for Immigration and Border Protection [2015] FCA 564; (2015) 150 ALD 477 at [24] per Davies J (and see also MZYIA vMinister for Immigration and Citizenship [2011] FCA 642; (2011) 121 ALD 291 at [26] per Gray J, SZRCG v Minister for Immigration and Citizenship [2013] FCA 483 at [17] per Rares J and SZTPY v Minister for Immigration and Border Protection [2015] FCA 565 at [18] per Davies J)). It is therefore exempt from the obligation in s.424A(1) by operation of s.424A(3)(b).
Section 425 of the Act required the Tribunal to invite the applicant to a hearing and to give him a meaningful opportunity to make arguments and give evidence in relation to the issues in the review SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [27].
On the evidence before the Court, the central issue in the review was the credibility of the applicant’s factual claims in support of his assertion to have been a Christian.
The Tribunal gave the applicant a meaningful opportunity to explain his claim. It squarely put him on notice: “I advised the applicant in light of the problems with his evidence I had considerable difficulty accepting that he was or had ever been a Christian and it appeared that he may have concocted his claims in order to obtain protection in Australia…” ([50] at CB 136).
In any event, there was no doubt as a result of the delegate’s decision that the applicant’s factual claims were entirely at issue (SZBEL at [47]). Ground 3 is not made out.
Conclusion
None of the applicant’s grounds are made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 September 2019
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