ALG15 v Minister for Immigration
[2016] FCCA 2963
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALG15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2963 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – whether Tribunal asked itself the wrong question – whether failure to consider relevant material – whether failure to conduct a proper review – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a) and (aa) 420, 422B, 425, 476 |
| Cases cited: DZAEH v Minister for Immigration & Border Protection [2016] FCA 83 |
| Applicant: | ALG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 146 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 16 November 2016 |
| Date of Last Submission: | 16 November 2016 |
| Delivered at: | Perth |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 146 of 2015
| ALG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application on 9 April 2015 (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal”) made on 10 March 2015. The Tribunal Decision affirmed a decision of a delegate dated 10 October 2012 (“Delegate’s Decision” and “Delegate”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 434-476.
Factual and procedural background
The factual and procedural background is as follows:
a)the applicant was born in the People's Republic of China: CB 14, is a resident of Hong Kong: CB 125 at [2], and arrived in Australia on a student visa in February 2003: CB 37 and 107;
b)between August 2004 and September 2006 the applicant departed Australia: CB 100. During that period he returned to Hong Kong and visited Canada for a number of months: CB 125 at [21]. In September 2006 the applicant returned to Australia on a further student visa: CB 107, he then departed Australia briefly in December 2007: CB 100 and 107, and has not departed Australia since: CB 100;
c)on 21 August 2010 the applicant became unlawful and upon being located in July 2012 was placed in immigration detention: CB 107;
d)on 13 September 2012 the applicant lodged the Protection Visa application the subject of these proceedings: CB 1-86;
e)the applicant claimed that he was the holder of a British National Overseas Passport which provides him with no right to enter mainland China: CB 35 at [2];
f)the applicant claimed that at the age of about 6 his family moved from Shanghai to Hong Kong: CB 35 at [5], and that whilst there his father developed a gambling addiction: CB 36 at [6]. As a result of his father's gambling addiction money was borrowed from loan sharks who threatened the family as well as the applicant's father: CB 36 at [6];
g)the applicant claimed that he was harmed by the loan sharks on two occasions: once when the loan sharks came to his school and pushed him against a wall and his head was injured: CB 36, and once when the loan sharks approached him outside his home and inflicted a cut on the left side of his face requiring stitches: CB 126 at [8];
h)the applicant claimed that the family then fled back to China: CB 36 at [7]. The applicant claimed that in China he was treated like a foreigner as he had no registration: CB 36 at [9];
i)the applicant subsequently applied for a student visa for Australia from Hong Kong in 2002 and again returned to Hong Kong in 2005 and 2006: CB 37 at [11];
j)the applicant claimed that:
i)he could not return to Hong Kong as the loan sharks would pursue and kill him: CB 37 at [13];
ii)he could not obtain support from his mother: CB 38 at [15]; and
iii)he would be discriminated against as a result of his disability (the applicant has one leg which is shorter than the other: CB 455 at [135]): CB 129;
k)the applicant further claimed that:
i)he could not return to China as his status in Hong Kong restricts his work rights;
ii)he does not have a household registration and therefore cannot access important services; and
iii)he would be discriminated against as a result of his disability and has no family supports in China as he no longer has a relationship with his father and his grandparents had passed away: CB 38 at [16];
l)the applicant further claimed that he had developed a gambling problem while in Australia: CB 37, and that without adequate support he would return to gambling: CB 38, and given the safety risks for gamblers he would be at high risk of serious harm in Hong Kong or Macau: CB 146 and 155-162;
m)on 10 October 2012 the Delegate refused to grant the applicant the Protection Visa: CB 106-116;
n)on 19 October 2012, the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 117-123;
o)on 11 December 2012, the Tribunal affirmed the Delegate’s Decision: CB 174-187 (“Earlier Tribunal Decision”);
p)the applicant subsequently filed an application for judicial review in relation to the Earlier Tribunal Decision which was dismissed by this Court on 14 April 2014 in SZSMG v Minister for Immigration & Anor [2014] FCCA 776 (“SZSMG”): CB 188;
q)on 5 August 2014 the Federal Court of Australia set aside the judgment in SZSMG and remitted the matter to the Tribunal in SZSMG v Minister for Immigration & Border Protection [2014] FCA 877; (2014) 146 ALD 518: CB 190-192;
r)the applicant raised additional claims in written submissions including that:
i)he had strong political views against the Chinese administration of Hong Kong and against the Chinese government and would openly express those views upon return: CB 218-219;
ii)he was subject to a Department of Immigration & Border Protection (“Department”) privacy breach in relation to his personal data and would face harm as a result: CB 219 (“Data Breach Claim”);
iii)he would be interrogated upon return to Hong Kong in relation to his immigration history and would face harm as a failed asylum seeker: CB 272; and
iv)he has no Hukou or right to work or permanently reside in mainland China, and if he were to approach the Chinese authorities in relation to his situation it would result in significant problems for him: CB 373; and
s)on 10 March 2015, the Tribunal (differently constituted to the Earlier Tribunal Decision) again affirmed the Delegate’s Decision to refuse to grant the applicant the Protection Visa: CB 434-476.
Tribunal Decision
In the Tribunal Decision the Tribunal found that:
a)the delay in lodging an application for a Protection Visa was significant when assessing the applicant's claims to have a well-founded fear of serious harm at the hands of loan sharks because of the gambling debts and his claim to have a well-founded fear of serious harm because of his physical disability: CB 439 at [35];
b)the applicant was not a credible witness. The Tribunal found that the applicant's evidence in relation to his time in Hong Kong and his life in Australia after 2008 was vague and he provided conflicting accounts of his detention in 2012, his ability to fund his gambling in Australia and the reason he was barred from the Star Casino in Sydney: CB 440 at [39];
c)it accepted that the applicant was injured as a child in Hong Kong by people trying to force his father to repay a debt: CB 443 at [60], but did not accept that his father was of any ongoing interest to loan sharks in Hong Kong given that his father had not suffered any harm in the 20 or more years since the claimed debt was incurred: CB 443 at [61], and due to the applicant's willingness to return to Hong Kong in 2004, 2006 and 2007: CB 443 at [57];
d)the applicant did not have any profile with the Hong Kong authorities due to his actual or imputed political opinion and that that claim had been made solely to strengthen his claim for protection: CB 445 at [74];
e)there was no evidence that the applicant would be seriously harmed because he overstayed his student visa and applied for protection in Australia: CB 445 at [76];
f)the data breach did occur and the applicant was affected by the data breach: CB 448 at [87], but that there was no real chance he would suffer harm if he was to return to Hong Kong or China given that the data breach occurred over one year ago and there was no suggestion that his personal information had been used to make a false identity, or that anyone who was then in immigration detention from Hong Kong or China and had since returned had come to the adverse attention of the Hong Kong or Chinese authorities: CB 448 at [89]-[90];
g)the applicant gambled heavily between 2008-2012: CB 451 at [114], and he was a problem gambler but did not accept his gambling addiction was as severe as he had claimed: CB 452 at [115]. The Tribunal found that there were not substantial grounds for believing that there was a real risk the applicant would suffer significant harm because of any involvement he might have with loan sharks: CB 459 at [159], or that the applicant would suffer significant harm because of his gambling: CB 460 at [166];
h)the applicant does have a physical disability in that one leg is shorter than the other: CB 455 at [135], but did not accept he would be deprived the opportunity to subsist: CB 455 at [135], deprived of medical treatment or that he would be unable to afford such treatment: CB 455 at [138]. The Tribunal further found that although the applicant may face some societal discrimination because of his disability any such discrimination did not amount to serious or significant harm: CB 465 at [142]; and
i)the Tribunal found that the applicant did not satisfy the criteria in ss.36(2)(a) or (aa) of the Migration Act and the Delegate’s Decision not to grant the applicant a Protection Visa was affirmed.
Grounds of amended Judicial Review Application
By an amended Judicial Review Application filed on 9 November 2015 the applicant raised four grounds of review. At hearing before this Court on 16 November 2016 ground 1 as amended was abandoned and a new ground 1 substituted (without objection by the Minister). Each ground is set out and considered below.
Consideration
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Grounds 1 and 4
Grounds 1 and 4 can be dealt with together as they assert that the Tribunal was either wrong, or did not have jurisdiction, to deal with the Data Breach Claim.
Ground 1 as substituted at hearing before this Court on 16 November 2016 is as follows:
… because of the Marshall letter I received from department says, “The person who is affected by the data breach will be assessed in departments per normal process”, and I would argue that the Administrative Appeals Tribunal now is not a part of the department; therefore, it does not constitute as a part of the normal process within the departmental range.
In relation to ground 1 it is not in dispute that the applicant was advised by letter from the Department that the data breach would be assessed as per the Department’s normal process, and he now argues that the review by the Tribunal did not constitute part of the Department’s normal process.
Ground 4 is as follows:
4. The Administrative Appeals Tribunal does not have jurisdiction to investigate the consequences for me of the data breach.
Particulars
·The release of my personal data on the internet was a breach of the Privacy Act (Cth) 1988
·The Information Commissioner is the competent authority named by that Act to investigate complaints under Part V of the Privacy Act.
It is irrelevant to the Tribunal’s jurisdiction as to whether another statutory body or office holder would investigate the Data Breach Claim. The Data Breach Claim was made and clearly articulated on behalf of the applicant. The Tribunal therefore had to consider the Data Breach Claim, and would have fallen into jurisdictional error had it not done so: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [61]-[65] per Gleeson CJ. In DZAEH v Minister for Immigration & Border Protection [2016] FCA 83 where the appellant sought to raise a similar ground, the Federal Court held at [34] per Besanko J that:
The Tribunal hears an application for review de novo and is required to make the correct and preferable decision. The effect of the data breach was relevant to the issues before the Tribunal and it was appropriate for the Tribunal to consider it.
The Tribunal had jurisdiction to deal with the Data Breach Claim, and the Data Breach Claim having been made before it by the applicant, the Tribunal was obliged to deal with it.
Even if the Data Breach Claim is treated as a denial of procedural fairness by the Tribunal no jurisdictional error is established. The Tribunal:
a)invited the applicant and his representative to appear before it to give evidence and present arguments relating to the issues arising in his case: CB 203, and the applicant and his representative attended the hearing before the Tribunal: CB 352; and
b)at hearing:
i)listened to and considered the applicant's claims;
ii)put to the applicant information in relation to the Data Breach Claim and invited him to respond; and
iii)addressed the claims made by the applicant with respect to the Data Breach Claim: CB 445-448 at [77]-[91].
Section 422B of the Migration Act applied in this case. Therefore, the Applicant was entitled only to the rights afforded him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the applicant was invited to and attended, and gave evidence at, the Tribunal hearing, and had matters which concerned the Tribunal put to him for comment. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
For the above reasons Grounds 1 and 4 do not establish jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 is as follows:
2. The Tribunal erred by finding pursuant to s.36(2) of the Migration Act that the Tribunal applied the worng test.
Particulars
Paragraph 74 of the tribunal's decision. the tribunal state it does not accept that I would have any profile with the hong kong authorities because of my actual or imputed political opinion.
The tribunal erred by finding that I do not have a history of political activities, therefore it concluded that I will not have any political activities or imputed political opinion against Hong Kong government.
A test for refugee status in accordance to the section 36 of the Migration Act is a test for a forcible future, not a test for the past. Therefore, the tribunal has made a fundamental error.
(transcribed verbatim).
The Tribunal:
a)was clearly cognisant of the relevant law to be applied in this matter which was set out in an annexure to the Tribunal Decision: CB 462-464;
b)was also aware of the applicant's claims, namely that he was opposed to the Chinese rule of Hong Kong and that if he were to return to Hong Kong he would join protests there: CB 444 at [64]-[65];
c)did not accept that the applicant would have any profile with the Hong Kong or Chinese authorities because of his actual or imputed political opinion: CB 445 at [74], and further assessed the applicant's claim in relation to his future political activities noting (at CB 445 at [74]) that:
He has not participated in any political activity in Australia or Hong Kong to give him such a profile. I do not accept that his role on a small student body at college in Australia or his self-claimed role as an advocate while in immigration detention is of any relevance to his claim that he would in the future have such a profile as he would join any future protests in Hong Kong.
d)was not satisfied that the applicant faced a real chance of serious harm amounting to persecution, on return to Hong Kong now or in the reasonably foreseeable future, for a Convention reason or reasons and that his fear was not well-founded: CB 456 at [146].
The applicant contends that the Tribunal applied the wrong test with respect to his claim regarding his actual or imputed political opinion as a supporter of protestors in Hong Kong, and thereby committed jurisdictional error by using past events to make a finding as to serious harm in the foreseeable future.
In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (“Guo”) the High Court held that:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The Tribunal was therefore able to use past events to assist it to make findings as to what will happen in the future, and committed no jurisdictional error by so doing. As Guo makes plain, using past events to assist in determining the likelihood of future events is an entirely orthodox part of the normal administrative decision-making process.
For the above reasons, ground 2 does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 is as follows:
3. The Tribunal failed take consideration of relevant martierail
Particulars
Paragraph 115 the Tribunal stated:' I find that applicant is a problematic gamble. I do not accept that he has a gambling addiction as he has claimed.
The Tribunal basically rejected a finding by a professional psychologist with out any substantial ground of cross-emanation, the psychologist report clearly state that I have a patter of gambling addiction of a persistent nature and of severe intensity, and I'm highly likely to continue gamble in problematic way.
Paragraph 115 the Tribunal stated:' I find that applicant is a problematic gamble. I do not accept that he has a gambling addiction as he has claimed.
The Tribunal did not take relevant consideration of my Psychologist report.
(transcribed verbatim).
The applicant claims that the Tribunal failed to consider relevant material, namely, a psychologist’s report that the applicant was a gambling addict.
In the Tribunal Decision the Tribunal specifically referred to the report “from a Clinical and Forensic Psychologist who met the applicant on 14 January 2015”: CB 451 at [111] (“Psychologist’s Report”). The Tribunal also made reference to the content of the Psychologist’s Report, namely that “the report repeats the information provided by the applicant” and that “… conclusions reached were that the applicant described a pattern of gambling addiction of a persistent nature and of severe intensity”: CB 451 at [111]. The Tribunal, having noted that the conclusions in the Psychologist’s Report were based on the applicant's self-reporting, further noted that the applicant had been aware of the criteria for a gambling disorder since at least December 2012 and would have been aware of the importance to his case of the diagnosis: CB 451 at [111] and [113]. The Tribunal took those factors into account in considering the weight it could give the Psychologist’s Report: CB 451 at [113].
The Psychologist’s Report was considered by the Tribunal, with the Tribunal ultimately concluding that the applicant’s gambling problem was not as severe as claimed: CB 451-452 at [111]-[115].
The Tribunal was not required to have rebutting evidence available before making its findings concerning the Psychologist’s Report: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J, and nor was the Tribunal under any obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J.
The applicant’s complaint with regards to the Tribunal’s treatment of the Psychologist’s Report ultimately goes to the weight to be given to the Psychologist’s Report, having regard, as the Tribunal did, to the source of the information contained in the Psychologist’s Report, that source being the applicant. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, Nicholson and Downes JJ. Furthermore, the Tribunal's findings on the evidence cannot be said to be unreasonable in any legal sense: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 at 41 per Mason J (Gibbs CJ and Dawson J agreeing at CLR 30 and 71); Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 at [72] per Hayne, Kiefel and Bell JJ.
For the above reasons, ground 3 establishes no jurisdictional error in the Tribunal Decision.
Conclusions and orders
The Court has concluded that there is no jurisdictional error in the Tribunal Decision. It follows, therefore, that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 30 November 2016
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