AJL18 v Minister for Immigration, Citizenship & Multicultural Affairs
[2023] FedCFamC2G 937
•19 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AJL18 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 937
File number: MLG 208 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 19 October 2023 Catchwords: MIGRATION LAW - judicial review of the decision of the Administrative Appeals Tribunal to not grant a Protection (Class XA) Visa - Tribunal did not find applicant a credible witness and rejected claims that the applicant was a Falun Gong practitioner and feared harm - finding that Applicant is not a person in respect of whom Australia has protection obligations and does not satisfy s 36(2)(aa) of the Migration Act 1958 (Cth) - grounds of review largely seek imperssible merits review - whether Tribunal failed to consider the applicant’s claims - whether the Tribunal’s credibility findings were reasonable - consideration of potential claim concerning unlawful departure - application dismissed - costs ordered Legislation: Migration Act1958 (Cth) ss 36(2), 47, 65 and 476
Migration Regulations 1994 (Cth) subclause 866.221
Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Appellant 20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
SGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submissions: 11 October 2023 Date of hearing: 11 October 2023 Place: Melbourne in person and by video conference The Applicant: Appearing in person Counsel for the First Respondent: Mr Kenneally Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 208 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJL18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
19 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application filed on 25 January 2018 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,500.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 25 January 2018 (Application) the Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 8 January 2018 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (subclass 866) visa (Visa).
This matter was heard on 11 October 2023 and proceeded in person and via videoconference (Hearing). At the conclusion of the Hearing judgment was reserved.[1] These are the Reasons for Judgment in relation to the Hearing.
[1] Orders of Her Honour Judge C. E. Kirton KC, 11 October 2023, Order 1.
ISSUES IN DISPUTE
The issues in dispute are whether the Tribunal erred in its decision-making by:
(a)Failing to properly consider relevant considerations and considering irrelevant considerations, in relation to the Applicant’s inconsistent evidence; and
(b)Making unreasonable credibility findings.
SYNOPSIS
I have determined that no jurisdictional error can be found in the Tribunal’s Decision. The Tribunal properly considered the Applicant’s claims and made reasonable credibility findings that were open to it on the evidence.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 13 November 2018 with 99 paginated pages (Court Book). The Court has reviewed the Court Book in detail. On 4 October 2023 the Minister filed Written Submissions (Minister’s Submissions). The Minister’s Submissions at [3] to [10] accurately summarise the background to this matter. The Court adopts these submissions with amendments as follows.
The Applicant is a national of the People’s Republic of China (China). The Applicant first arrived in Australia on 31 July 2008 as the holder of a fraudulent Malaysian Passport under the alias of Mr Kuan Lem Lee.[2] The Applicant entered Australia as the holder of a Visitor Visa under his fraudulent identity, which was due to expire on 31 October 2008.[3]
[2] Court Book (CB) 67-68.
[3] CB 68.
In 2008 the Applicant applied for a protection visa (2008 Visa Application). The proceedings relating to the 2008 Visa Application were as follows:[4]
(a)On 31 October 2008 the Applicant was granted a bridging visa under his true identity, in association with the 2008 Visa Application.
(b)On 11 November 2008 the 2008 Visa Application was refused by a delegate of the Minister.
(c)The Applicant lodged an application for review with the then Refugee Review Tribunal (RRT). In March 2009 the RRT affirmed the decision to not grant the Applicant a protection visa (RRT Decision).
(d)The Applicant sought review of the RRT Decision in the then Federal Magistrates Court. The RRT Decision was set aside and the matter was remitted to the RRT.
(e)The RRT affirmed the decision to not grant the protection visa.
[4] CB 68 and 96; First Respondent’s (Minister) Written Submissions, filed 4 October 2023, (Minister’s Submissions), [4] and [5].
On 17 March 2014 the Applicant applied for the Visa (2014 Visa Application).[5] The Applicant was not barred from submitting a second protection visa application as his 2008 Visa Application was considered and determined only in relation to the refugee criteria: SGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. The 2014 Visa Application was limited to consideration of the complementary protection criterion contained in s 36(2)(aa) of the Migration Act, which commenced on 24 March 2012. The Applicant appointed a migration agent.[6]
[5] CB 9-39.
[6] CB 40-42.
The Applicant attached a statement to his 2014 Visa Application (Applicant’s Statement).[7] The Applicant’s Statement contained the following claims:
[7] CB 35-36.
(a)The Applicant is from China and came to Australia with a Malaysian passport on 31 July 2008.
(b)The Applicant is a Falun Gong practitioner, having practised from 2007.
(c)The Applicant is scared to return to China due to his faith in Falun Gong, which he was persecuted for when he was in China. The Applicant fears being detained, sued and tortured to death by the police.
(d)The Applicant cannot return to China as he left China illegally using a forged passport.
(e)The Applicant cannot return to China “because of what happened to my wife”.
(f)The Applicant and his cousin were arrested on 5 February 2008 by “the authority”, sent to the local police station and then detained for 15 days. The Applicant was inhumanely mistreated and forced to write a letter of remorse during his detention. The Applicant’s wife paid a fine to obtain his release.
(g)The Applicant’s cousin attacked a police officer which resulted in the hospitalisation of the Applicant’s cousin. The Applicant’s cousin is hiding in Hong Kong as he would be sent to jail in China. The Applicant fears if he returned to China the police officer would send him to jail and sue him for his cousin’s attack.
(h)The Applicant and his wife communicate over the phone. The Wife asked him to not return to China as it is not safe and the police are “clamping down on the thing that I have a forged passport”.
(i)The police went to the wife’s home to supervise her and the wife has been repeatedly threatened and raped by a police officer.
(j)The Applicant’s purpose for staying in Australia is to live safely rather than earn money.
On 19 May 2015 the Applicant was requested by the Department of Immigration and Border Protection (Department) to attend an interview on 11 June 2015 to discuss the 2014 Visa Application.[8]
[8] CB 53-62.
On 2 September 2015 the Delegate refused to grant the Visa under s 65 of the Migration Act (Delegate’s Decision).[9] The Delegate was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s 36 of the Migration Act and subclause 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth).[10]
[9] CB 63-75.
[10] CB 67.
On 28 September 2015 the Applicant sought review of the Delegate’s Decision before the Tribunal.[11]
[11] CB 76-81.
On 5 December 2017 the Applicant was invited to attend a hearing before the Tribunal on 20 December 2017.[12]
[12] CB 86-88.
On 20 December 2017 Applicant appeared before the Tribunal by videoconference (Tribunal Hearing).[13] The Applicant gave evidence and was assisted by a Mandarin interpreter.
[13] CB 89-91.
In the Tribunal’s Decision on 8 January 2018, the Tribunal affirmed the Delegate’s Decision.[14] The Tribunal notified the Applicant the following day.
[14] CB 95-99.
THE TRIBUNAL’S DECISION
The Tribunals Decision appears at pages 95 to 99 of the Court Book.
The Tribunal identified that, given the previous application, the Tribunal had no jurisdiction to consider the refugee criteria in s 36(2) of the Migration Act and must only consider the complementary protection criteria in s 36(2)(aa). The Tribunal had to assess whether there are substantial grounds for believing, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm: s 36(2)(aa) the Migration Act. ‘Significant harm’ is defined in s 36(2A) of the Migration Act: Tribunal’s Decision [7].
The Tribunal noted that the Tribunal is required to take account of policy guidelines prepared by the Department and any country information: Tribunal’s Decision [9].
The Tribunal identified that the determinative issue in this matter was the credibility of the Applicant regarding whether he is a genuine Falun Gong practitioner: Tribunal’s Decision [11]. The Tribunal was not satisfied that the Applicant was a genuine Falun Gong practitioner for the following reasons: Tribunal’s Decision [12] to [25]:
(a)The Applicant provided inconsistent answers about how he was introduced to Falun Gong. The Applicant was either introduced to the practice by his cousin or by his friend to address a lower back injury and he was taught by men doing the exercises in front of him.
(b)The Applicant demonstrated no knowledge of Falun Gong. The Applicant conceded that he did not know about the philosophy or teachings, as his learning centred only on the exercises. The Applicant said there were four (4) exercises, when there are five (5). The Applicant could not remember the name of the exercises or demonstrate the exercises when asked by the Tribunal. The Applicant stated that he could not remember and he was an uneducated man.
(c)The Applicant provided inconsistent answers regarding being detained by authorities. The Applicant’s written claims differed from his evidence at the Tribunal Hearing, in particular regarding a letter of remorse and how many people he was arrested with.
(d)The Applicant gave inconsistent answers about an incident involving a police officer and the Applicant’s wife. The Applicant changed the year of incidents and the timeline of events involving his wife and his cousin. The Applicant provided differing details about where his cousin was located. The Applicant stated that the events were a long time ago and he could not remember some details.
The Tribunal determined at [26] that the “cumulative effect of the Applicant’s inconsistent evidence and his demonstrated lack of knowledge” is that the Applicant was not a credible witness. Therefore, the Tribunal rejected the Applicant’s claims that: he practiced Falun Gong; he had been detained by authorities; his wife had been raped by the police; and that threats had been made by the police to the wife directed at the Applicant. Consequently, the Tribunal was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations and the Applicant did not satisfy s 36(2)(aa), nor was there any material addressed to s 36(2)(b) or (c) of the Migration Act: Tribunal’s Decision [28].
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 25 January 2018, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 24 August 2023 Orders were made by a Registrar for the Applicant to file and serve at least 14 days before the Hearing: written submissions, any amended application with proper particulars; and any additional evidence. The Applicant did not file any material in compliance with these Orders.
The Hearing took place on 11 October 2023 and proceeded in person and via video conference. The Applicant was self-represented and appeared in person with the assistance of an interpreter. The Minister was represented by Counsel. Counsel for the Minister appeared in the Court. I appeared via videoconference.
A Mandarin and English interpreter assisted the Applicant at the Hearing. I confirmed with the Applicant that he required the Hearing to be completely interpreted. At the commencement of the Hearing, the Applicant confirmed that he had received but not read the Minister’s Submissions or the Minister’s Supplementary Submissions, filed on 9 October 2023 (Minister’s Supplementary Submissions), as he does not read English. Given this matter has been on foot for an extensive period of time, the Minister sought to proceed with the hearing of the matter. I stood the matter down for 30 minutes to allow the Applicant to have the Minister’s Submissions and the Minister’s Supplementary Submissions translated to him.[15] The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
[15] Transcript P4-5.
The Applicant relied upon the following documents:
(a)The Application; and
(b)The Affidavit of the Applicant affirmed and filed 25 January 2018 (Applicant’s Affidavit).
The Minister relied upon the following documents:
(a)The Minister’s Submissions;
(b)The Response;
(c)The Court Book;
(d)The Supplementary Submissions; and
(e)The List of Authorities filed 9 October 2023.
In the Application the Applicant relied on two (2) grounds of review (Grounds of Review) as follows:
1.The Presiding tribunal member constituted juridical error in reaching the conclusion on Paragraph 26 that the applicant has never practised Falun Gong or ever been detained by the authorities. The matter of fact is that the review applicant has been practising Falun Gong and has ever been detained by the Chinese authority in the past. (Ground 1)
2.The tribunal member denied fairness to the review applicant by failing to take into account that all those incidents occurred many years ago and it is unreasonable for the review applicant to have remembered all the incidents that occurred a long time ago in details. (Ground 2)
(Words in bold added, otherwise as written)
The Applicant’s Affidavit advances the same claims as the Grounds of Review. At the Hearing the Applicant was provided with an opportunity to expand on the Grounds of Review. The Applicant stated that he would like to continue living in Victoria and that he had nothing further he wished to add to the Application.[16]
CONSIDERATION
[16] Transcript P9:L3-15.
The finding that the Applicant is not a credible witness
The Tribunal’s finding that the Applicant was not a credible witness resulted in the Tribunal rejecting the Applicant’s claims and therefore finding that the Applicant was not owed protection obligations. The Grounds of Review oppose the Tribunal’s findings as to the credibility of the Applicant’s claims on the basis that the Tribunal did not properly consider whether the Applicant practised Falun Gong and did not consider the impact of the passage of time on the Applicant’s evidence. The Applicant was provided an opportunity to provide further submissions regarding the Grounds of Review at the Hearing but stated that he had nothing further to add.
To the extent that the Grounds of Review seek review of the factual findings of the Tribunal the Court cannot undertake impermissible merits review. The Court also cannot address the Grounds of Review to the extent the Applicant is unhappy with the Tribunal’s Decision.
The Minister firstly summarised the 2014 Visa Application in relation to the complementary protection criteria and then summarised the Tribunal’s Decision. The Minister argued that the Grounds of Review must fail as the Tribunal’s Decision was reasonable and rational given the evidence before it. The Minister then addressed the potential claim relating to the Applicant’s unlawful departure from China.
Ground 1
Ground 1 contends that the Tribunal erred in its consideration and assessment of the Applicant’s evidence regarding being a Falun Gong practitioner. The Applicant objects to the Tribunal’s rejection of his claims on the basis that the findings were incorrect. At the Hearing the Applicant was provided an opportunity to explain further and he provided no further information.[17]
[17] Transcript P8:L14-28.
The Minister submitted that no error arises from the Tribunal’s adverse credibility findings as the Tribunal’s reasons establish a cogent basis for its findings. The Minister cited Re Minister for Immigration and Multicultural Affairs; Ex parte Appellant 20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 which held at [49]:
49.In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. […]
Counsel for the Minister explained that the Tribunal rejected all three (3) of the main claims advanced by the Applicant and provided an explanation as to why each claim was not accepted.[18] Therefore, Counsel for the Minister advanced that the credibility findings were rational and reasonable conclusions on the evidence.[19]
[18] Transcript P11:L9-21.
[19] Transcript P12:L4-10.
The Tribunal based its findings on the Applicant’s inconsistent evidence and inability to recall events and details related to his past and practicing Falun Gong. The Tribunal addressed each of the three (3) main claims. The inconsistent written and oral evidence of the Applicant and the gaps in his evidence led the Tribunal to not accept that the Applicant practiced Falun Gong. The inconsistent evidence about the details and circumstances of his detention led to the Tribunal rejecting this claim. The Applicant’s interaction and investigation by police was rejected on the basis that the Applicant’s dates and explanation of the circumstances were inconsistent. The findings of the Tribunal regarding the Applicant’s credibility were open to it on the evidence.
Further, the Tribunal put to the Applicant adverse information and provided him with the opportunity to provide information in support of his claims. The Tribunal expressly raised the issue of the Applicant’s inconsistencies at [25] of the Tribunal’s Decision and rejected the Applicant’s explanation. The Tribunal rejected the explanation on the grounds that it was reasonable to expect that the Applicant would remember details of his claims. There is no evidence of unreasonableness or a lack of procedural fairness in the Tribunal’s decision-making.
No jurisdictional error can be found in Ground 1. Ground 1 must therefore be dismissed.
Ground 2
Ground 2 claims that the Tribunal did not take into account the Applicant’s memory and the passage of time in arriving at its adverse credibility findings. Ground 2 implies that the Tribunal’s Decision failed to afford the Applicant procedural fairness and was unreasonable due to the assessment of the Applicant’s evidence about past events. At the Hearing it was confirmed with the Applicant that he had no further submissions to add in relation to Ground 2.[20]
[20] Transcript P8:L45-P9:L3.
The Minister submitted that the Tribunal expressly considered but did not accept the Applicant’s claim that memory loss impacted his ability to recall events and details. Counsel for the Minister submitted that the Tribunal expressly considered the effect of the passage of time on the Applicant’s evidence, and then rejected the claim that the reason he had not recalled the details and that there were inconsistencies was the Applicant’s memory.[21]
[21]Transcript P11:L42-46.
The Tribunal’s credibility findings founded the Tribunal’s rejection of the Applicant’s claims. At [18] to [25] of the Tribunal’s Decision the Tribunal considered the Applicant’s claims and came to a reasonable conclusion, as submitted by the Minister. At [25] the Tribunal determined that it was reasonable to expect that even with the passage of time the Applicant could provide consistent answers about his claims. The Tribunal considered the Applicant’s evidence as a whole and determined that the memory loss was not a credible explanation for the Applicant’s inconsistent evidence. The Tribunal came to the reasonable and rational conclusion that “the Applicant’s evidence is untruthful due to its inconsistencies”: [21] Tribunal’s Decision. It was open to the Tribunal to make these findings regarding the Applicant’s credibility given the cumulative effect of the Applicant’s evidence.
No jurisdictional error can be found in Ground 2. Ground 2 must therefore be dismissed.
Real risk of significant harm relating to false passport
The Minister’s Supplementary Submissions raise the potential argument that the Tribunal failed to consider that the Applicant faced a real risk of significant harm on return to China as a result of leaving on a false passport.
The Minister contended that the potential claim was without merit on the basis that the Tribunal considered the claim as advanced by the Applicant and further or alternatively, the Applicant did not make any claim about the likely penalty for departing on a forged passport and no claim clearly emerged from the materials. Counsel for the Minister explained that there was no evidence before the Tribunal that the Applicant would be penalised for his unlawful departure from China and that the Applicant only claimed fear of significant harm in relation to the police officer and practising Falun Gong.[22]
[22] Transcript P12:L27-40.
The Applicant claimed that he could not return to China as he had entered Australia with a forged passport. The Applicant said that he had left China unlawfully, that the police were aware of his unlawful departure, and that he feared harm if he returned. The Tribunal did not reject the claim that he left on a false passport: [22] Tribunal’s Decision. The Tribunal did not make an express finding relating to harm as a result of the false passport. There are no established facts to support the claim that the Applicant would face consequences from unlawful departure from China and the Applicant did not make an express or implicit claim that he feared significant harm as a result of using the unauthorised passport. The Applicant’s claim did not an argue alternative basis and only claimed fear of torture or death as a result of being a Falun Gong practitioner and the feud with the police officer.
This claim does not reveal jurisdictional error in the Tribunal’s Decision.
CONCLUSION
The Application has not identified jurisdictional error and the must be dismissed.
The Minister sought costs fixed in the sum of $5,500.[23] The Minister does not seek costs associated with the Supplementary Submissions. The amount sought is below the scale amount in Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
[23] Minister’s Submissions, [22.2]; Minister’s Supplementary Submissions, [9]; and Transcript P13:L34-39.
Orders will be made accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 19 October 2023
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