AMI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 174
•12 February 2020
FEDERAL COURT OF AUSTRALIA
AMI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 174
Appeal from: AMI17 v Minister for Immigration and Border Protection [2019] FCCA 2017 File number: NSD 1357 of 2019 Judge: FOSTER J Date of judgment: 12 February 2020 Date of publication of reasons: 20 February 2020 Legislation: Migration Act 1958 (Cth), s 438
Federal Court Rules 2011, r 36.75
Date of hearing: 12 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 28 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1357 of 2019 BETWEEN: AMI17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
12 FEBRUARY 2020
THE COURT ORDERS THAT:
1.Pursuant to r 36.75 of the Federal Court Rules 2011, the appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal, such costs to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FOSTER J:
On 12 February 2020, when the appellant’s appeal was called on for hearing, the appellant was absent. The appeal was then called outside the courtroom but the appellant was not in the precincts of the Court. Accordingly, in light of the appellant’s failure to attend the hearing of his appeal, I dismissed his appeal with costs pursuant to r 36.75 of the Federal Court Rules 2011 (FCR).
I was satisfied that the appellant was well aware that his appeal had been listed for hearing before me at not before 11.45 am on 12 February 2020. The Court’s Registry had informed him of this. In addition, the solicitors for the first respondent (the Minister) had reminded the appellant of the time and date of the hearing by letter dated 5 February 2020 (as to which, see Exhibit A). In that letter, the solicitors for the Minister advised the appellant that, if he failed to attend the hearing of his appeal, the Minister may apply to the Court for orders dismissing his appeal with costs without further notice to him.
Notwithstanding that I made the 12 February 2020 orders pursuant to r 36.75 FCR, I indicated to the solicitors for the Minister that I would publish short Reasons for Judgment in support of my conclusion that the appellant’s case had no merit in any event.
These are the Reasons for Judgment which I foreshadowed on 12 February 2020.
BACKGROUND AND APPELLANT’S CLAIMS
The appellant appealed from a judgment of the Federal Circuit Court of Australia (the Circuit Court) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal): AMI17 v Minister for Immigration and Border Protection [2019] FCCA 2017. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a Protection Visa.
The appellant is a citizen of China born on 5 July 1978. He is married with two daughters. His wife, his children and his parents all live in China. He first arrived in Australia on 4 June 2014 having left China the day before. He entered Australia on a GA-400 Highly Specialised visa. On 16 July 2014, by application dated 15 July 2014, the appellant applied for a Protection (Class XA) Visa (visa). This application was made one day before the expiry of his GA-400 visa.
In support of his application for the visa, the appellant lodged a Personal Statement dated 15 July 2014 which he subsequently supplemented by a further Personal Statement dated 20 July 2014. The claims for protection which the appellant advanced in those personal statements may be summarised as follows:
(a)In May 2010, the appellant met someone who had been introduced to him by a friend who was a Falun Gong practitioner. Within six months of meeting this new friend, the appellant became a devout believer and began to practise Falun Gong by himself. In January 2012, the appellant started to formally participate in Falun Gong activities;
(b)In January 2014, the appellant was engaging in Falun Gong activities at a fellow practitioner’s house. The police raided the premises and the appellant and others were arrested. The appellant was detained for 15 days and was tortured and beaten during that period of detention. He was interrogated constantly and suffered sleep deprivation;
(c)Under duress and near the end of his detention, the appellant signed a document committing to never again being involved in Falun Gong activities. He claimed that he signed this document under extreme pressure and against his will;
(d)After his release, the police visited his home from time to time to check if he was still practising Falun Gong. He had to report weekly to the local police station to discuss his ideology; and
(e)In addition, in 2011, the appellant suffered physical and psychological persecution from the Chinese government because he and his wife had a second child in breach of China’s one child policy. The government tried to make his wife have an abortion. After their second daughter was born, the appellant was fined a substantial amount of money. He had to borrow money in order to pay the penalties imposed.
On 31 March 2015, a delegate of the Minister refused to grant the appellant the visa. That decision was supported by detailed reasons by which the delegate explained why it was that she had not accepted the appellant’s claims.
On 20 April 2015, the appellant sought review of the delegate’s decision by the Refugee Review Tribunal. This specialist Tribunal was ultimately absorbed into the Tribunal. On 20 January 2016, the Tribunal affirmed the delegate’s decision. That decision made by the Tribunal was subsequently set aside by the Circuit Court by consent on 23 March 2016. At the same time, the appellant’s Application for Review of the delegate’s decision was remitted to the Tribunal to be reconsidered and determined according to law.
On 9 January 2017, the Tribunal again affirmed the delegate’s decision.
THE TRIBUNAL’S DECISION OF 9 JANUARY 2017
After explaining the appellant’s claims and referring to the documents provided to the Tribunal by him, at [24] the Tribunal commenced its consideration of the appellant’s Review Application. At the outset, the Tribunal said that it did not find the appellant to be a credible and truthful witness ([24]). The Tribunal considered that the appellant’s evidence as to the circumstances in which he had been introduced to the practice of Falun Gong was “inconsistent, highly implausible and unpersuasive” ([25]). At [26]–[30] of its Reasons, the Tribunal set out the matters which led it to form that view. At [31]–[32], the Tribunal said that the appellant had provided inconsistent evidence in relation to how he had practised Falun Gong in China. The Tribunal also noted that the appellant had raised a number of new claims during the second Tribunal hearing ([33]; [38]; and [39]) and had provided “vague and unconvincing evidence” about his claimed release from detention ([34]). At [35]–[43], the Tribunal set out a number of other reasons for its conclusion that the appellant’s version of events had a “fundamental lack of credibility”. In addition, the Tribunal did not give any weight to the documents produced by the appellant as part of the materials relied upon by him in support of his claims for protection.
At [44], the Tribunal concluded that the appellant had fabricated his claims to fear persecution as a Falun Gong practitioner and did not accept any of the appellant’s claims raised in connection with Falun Gong. The Tribunal did accept that the appellant had visited some Falun Gong sites in Australia and had acquired some basic knowledge of Falun Gong but was not satisfied that his conduct was otherwise than for the specific purpose of strengthening his claims for protection. At [50]–[51], the Tribunal said:
Despite the Tribunal’s serious concerns regarding the applicant’s overall credibility, it is prepared to accept the applicant’s account of his past experiences in connection with the birth of his second child. However, on the basis of the evidence before it, the Tribunal is of the view that this matter has been fully resolved and the applicant has not encountered any problems since 2010 or 2011. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious harm or significant harm for the reason of or arising from breaching China’s then family planning regulations, assisting his wife in hiding or protecting her from undergoing forced abortion. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious or significant harm for any political opinion that may have been imputed to him as a consequence of his actions in 2010 or 2011.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, or otherwise. 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).
At [52]–[56] of its decision, the Tribunal said:
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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
THE JUDGMENT OF THE CIRCUIT COURT
By Application for Judicial Review filed in the Circuit Court on 6 February 2017, the appellant sought judicial review of the Tribunal’s decision. The grounds relied upon by him in that Application were as follows:
1.AAT HAS DESCRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION AND MY EVIDENCE.
2. AAT IS UNFAIR TO ME, I AM SEEKING JUSTICE
In support of his Application, the appellant filed a short formal affidavit affirmed on 1 February 2017.
At the hearing before the primary judge, certain documents were the subject of a certificate issued by the delegate of the Minister on 31 March 2016 pursuant to s 438 of the Migration Act 1958 (Cth) (the Act).
The primary judge set out the background to the proceeding and summarised the appellant’s claims at [2]–[9] of his Reasons.
As to the first ground of review, his Honour carefully considered the matters advanced by the appellant before him in support of that ground at [10]–[17] of his Reasons.
The appellant had claimed that the Tribunal member had laughed and smiled mockingly at him during the course of the Tribunal hearing and had asked him misleading questions. However, despite being given an opportunity to adduce a recording or transcript of the Tribunal’s hearing, the appellant did neither of those things. The primary judge dismissed the first ground of review upon the basis that there was no evidence whatsoever to support it.
As far as ground 2 was concerned, the primary judge concluded that there was no evidence before him that substantiated that claim. In the course of dealing with ground 2 (at [18]–[20] of his Reasons), the primary judge observed (correctly) that the Tribunal had been entitled to ask the appellant questions about his claims and to test the evidence which he gave.
As far as the certificate issued by the Minister pursuant to s 438 of the Act was concerned, the primary judge noted that the Minister conceded that the certificate was invalid and that it and the documents covered by it had not been disclosed by the Tribunal to the appellant. His Honour was not satisfied, however, that this failure was material because the documents were not relevant to the Tribunal’s decision with the consequence that disclosure of them, or the certificate itself, could not realistically have led to a different decision being made.
THE APPELLANT’S FEDERAL COURT APPEAL
By Notice of Appeal filed on 23 August 2019, the appellant appealed from the decision of the primary judge. In that Notice of Appeal, the appellant relied upon three grounds which were expressed in the following terms:
1.Bias of the Honour, Judge of Federal Circulate Court against the Applicant.
2.Error of the Honour, Judge of Federal Circulate Court, in failing to hear the evidence given by the applicant.
3.Error of the Honour, Judge of the Federal Circulate Court, in failing to identify the jurisdictional error made by the Second Respondent.
The appellant did not file any Written Submission in support of these grounds of appeal nor, as I have already noted, did the appellant attend at the hearing of his appeal and endeavour to support these grounds orally.
I shall now briefly address the three grounds relied upon by the appellant in this Court.
Ground 1
By this ground, the appellant alleges that the primary judge was biased against him. No particulars of this very general allegation are set out in the Notice of Appeal or otherwise provided. The appellant did not adduce any evidence as to the course of the hearing before the primary judge. The only available material against which this allegation could be tested is the primary judge’s judgment itself. Nothing in his Honour’s Reasons for Judgment is suggestive of actual or apprehended bias. In fact, the primary judge went out of his way to ensure that the appellant received a fair hearing in relation to the grounds of review advanced before him. There is not a jot of evidence or material before this Court which would support ground 1 of the grounds of appeal relied upon by the appellant in this Court. Accordingly, I would reject ground 1.
Ground 2
The nature of the appellant’s complaint about the primary judge raised by ground 2 is unclear. No particulars of that allegation are set out in the Notice of Appeal or otherwise provided. Nothing in the materials before me suggests that the primary judge failed to hear evidence which the appellant sought to adduce before him. To the contrary, it is apparent from [12]–[17] of the primary judge’s Reasons that his Honour gave the appellant every opportunity to adduce further evidence as to the course of the proceeding before the Tribunal. However, the appellant did not bring forward evidence of the type and calibre which the primary judge had suggested would be required. Ultimately, the appellant did file a further affidavit after the hearing before the Circuit Court had concluded (viz his affidavit of 24 August 2018). The primary judge did consider the matters that were raised in that affidavit but was not satisfied that any of them established jurisdictional error on the part of the Tribunal. Accordingly, I would reject ground 2.
Ground 3
This ground is also expressed in very general language and is utterly devoid of content. The appellant has not come to Court to explain the ground. The only matter addressed by the primary judge not already discussed in these Reasons concerned the use of the s 438 certificate issued by the Minister on 31 March 2016. His Honour’s treatment of that matter was entirely orthodox and, with great respect to him, correct.
CONCLUSION
As I said at the outset of these Reasons for Judgment, notwithstanding that I dismissed the appellant’s appeal pursuant to r 36.75 FCR on account of his absence from the hearing, I was also of the opinion that the material before me did not support any of the three grounds of appeal relied upon by the appellant with the consequence that, in my view, his appeal had no merit. In all the circumstances, I dismissed the appellant’s appeal with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 20 February 2020
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