Aoo19 v Minister for Immigration
[2019] FCCA 3009
•21 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOO19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3009 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424AA, 425, 438 |
| Cases cited: CED15 v Minister for Immigration [2018] FCA 451 CIV16 v Minister for Immigration & Anor [2018] FCCA 1282 |
| Applicant: | AOO19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 338 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr S Valliappan of DLA Piper |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 338 of 2019
| AOO19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 January 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 11 October 2019.
The applicant is a citizen of China who arrived in Australia on 24 April 2011 as the holder of a visitor visa.
On 10 March 2015, the applicant applied for a protection visa on the basis of the following claims which have been summarised by the Tribunal at [12] of its reasons:[1]
[1] Court Book (CB) 111-112
·He was born on 17 November 1964 at Shenyang in Liaoning Province in China. He got married on 19 May 1991 and has one child of his marriage.
·His wife is a Christian. She attended gatherings with other Church members and distributed Christian pamphlets in public. On 26 March 2005, his wife went to a Church gathering and did not return at the expected time. He received a telephone call from her requesting that he bail her out at the Police Station.
·He went to the Police Station and was informed by a Policeman that his wife had attended an illegal underground Church and would be released if bail was paid. He withdrew 5,000 yuan from the nearest ATM and secured her release. He became angry when he saw his wife crying and saw the “slapping mark” on her face. When he questioned the Policeman about this, he was told that his wife was lucky to have been released on bail and asked whether he wanted her to be detained.
·Thereafter, his wife did not dare to preach in public and she and other Church members met more secretly to read the Bible and communicate with each other. On 7 April 2007, the Police entered his home by force and arrested his wife. When he tried to prevent them from doing so, he was hit by a Police Officer. When he regained consciousness, his wife had been taken to the Police Station.
·Three or four hours later, he received a telephone call from the Police and was again requested to pay bail. He went to the Police Station and paid the bail. As she was being released, one of the Police Officers threatened his wife that if she continued to practice her religion she would be arrested and sentenced. His wife informed him that the Police Officer had beaten her and fingerprinted her by force on a declaration that confirmed she was a “heresy believer”.
·His wife contacted an agency and made arrangements for their son to study in Australia. She also applied for a Student Dependent visa and came to Australia with their son. He applied for and was granted a Visitor visa and came to Australia in April 2011.
·With the passage of time, they got used to life in Australia and his wife got to know some members of the local Church. In February 2012, his wife started attending the Presbyterian Church at Ashfield. Following a criminal case in Shandong Province on 18 May 2014, the Chinese government started to arrest Christians on a large scale.
·His wife’s Church friends in China contacted her and told her that they were living like fugitives and their relatives were being monitored by the Police. They advised her not to return to China. If he and his wife return to China they will be persecuted and monitored like his wife’s Church friends. He hopes the Australian government will grant him protection so that he could be safe from persecution by the Chinese Communist Party.
On 16 February 2016, the delegate made a decision to refuse to grant the applicant the visa.
On 5 March 2016, the applicant applied for review with the Tribunal and on 23 January 2019 he attended a hearing to present arguments and give evidence.
On 24 January 2019, the Tribunal affirmed the decision under review.
Tribunal’s decision
The Tribunal first summarised the applicant’s evidence at the hearing:
a)in response to why he did not return to China before the expiration of his visitor visa, the applicant claimed that he stayed because of his wife who did not wish to return and was worried because of what had happened in the past;[2]
b)further, the applicant confirmed that he was not a Christian, did not fear any threat to himself personally and that he applied for the visa because he did not wish to leave his wife and that it would be impossible for them not to get a divorce if they lived in separate countries;[3]
c)in reply to information put to him under s.424AA of the Migration Act 1958 (Cth) (Migration Act), namely, the rejection of his wife’s protection claims which raised concerns in relation to the credibility of his claims about his wife, the applicant claimed that she delayed applying for the visa because she did not have a lot of contact with other people and did not know Australian law and that only after she found out she could attend church was she informed she could apply;[4]
d)in reply to further information put to him under s.424AA of the Migration Act, namely, that his delay in applying for the visa and his immigration history raised concerns that he was trying to extend his stay in Australia and not because he was in need of protection, the applicant claimed that he had failed in trying to persuade his wife to return to China and that there was not a “huge” risk to her but that she was traumatised and afraid to return;[5]
e)the Tribunal then asked the applicant why his wife had failed to include him in her protection visa application, to which he responded that she was not familiar with the process. However, when it was pointed out she had representation, he noted that he did not have a religion like her and that she solely applied for protection because she was the only one in need of it;[6] and
f)lastly, the applicant was questioned as to why his wife failed to give evidence at the hearing on his behalf and noted that this raised concerns as to whether they remained in a relationship. The applicant said that she did not attend because it was his case and that it did not have a strong connection to her, that his agent did not inform him that she could also attend and that his wife was a timid person and he did not want her to get involved.[7]
[2] [19]
[3] [20]-[21]
[4] [23]
[5] [25]
[6] [27]
[7] [28]
The Tribunal did not accept the applicant’s explanation regarding his wife’s delay in applying for a visa, noting that their son was studying in Australia and had access to teachers and other students from whom she could have obtained some information about where to obtain immigration advice.[8] Further, it did not accept his explanation as to his own delay, noting that his evidence consisted of questions as to why he was not given work rights when he made his application and that he had been working in the construction industry but that employers were reluctant to hire him. The Tribunal found that his evidence indicated that his priority was to work in Australia and that the application was made with the expectation he would be granted a bridging visa with such rights.[9]
[8] [23]
[9] [26]
The Tribunal also did not accept the applicant’s explanation regarding his wife’s non-attendance at the hearing. It noted that he completed and returned the “Response to hearing invitation” form which provided for witnesses and that he expressly answered “No”. In those circumstances, it did not accept that he did not know he could bring her to give evidence on his behalf.[10]
[10] [29]
The Tribunal noted that it informed the applicant of a certificate purportedly issued under s.438 of the Migration Act and that it covered an application and identification test and an internal checklist but that it considered the certificate to be invalid.[11]
[11] [30]-[31]
The Tribunal without further evidence was prepared to give the applicant the benefit of the doubt that he remained married to his wife. Further, it accepted that his son travelled to Australia in December 2010 as the holder of a student visa and that he was accompanied by the applicant’s wife who was the holder of a student guardian visa and that subsequently the applicant came in April 2011 on a visitor visa. Further, it accepted that the applicant remained unlawfully between the expiration of his visitor visa and the application of his protection visa and that he had been working unlawfully in the construction industry.[12]
[12] [32]-[33]
In relation to the applicant’s wife, the Tribunal accepted that she applied for a protection visa in August 2010 and that that was refused by a delegate of the Minister and on review by the Tribunal in November 2012 and August 2013 respectively. Further, it accepted that she has remained unlawfully since and that she does not wish to return to China.[13]
[13] [34]
The Tribunal accepted that the applicant was not a Christian and did not fear any harm if he returned to China. It did not accept that he would be forced to divorce his wife if he were to return without her and on the evidence before it was not satisfied he would be at risk of harm because his wife was a Christian and is of adverse interest to the Chinese authorities.[14]
[14] [35]
The Tribunal was not satisfied the applicant was at risk of harm if he were to return to China now or in the reasonably foreseeable future and accordingly affirmed the decision of the delegate to refuse to grant the applicant the visa.[15]
[15] [36]-[44]
The present proceedings
These proceedings began with a show cause application filed on 18 February 2019. The grounds in the application are in a document attached to it:
1.Due to the fact my wife is a sincere Christian, she was persecuted by the China communist Party, I was also influenced by her's belief. I have to stay in Australia to avoid the persecution from the China Communist Party. AAT case officers are not responsible, I told them that I would be forced to divorce my wife if I return to China without her. I told my situation to them, but they did not believe that and refused my application immediately. They are so irresponsible, and they do not do any investigation, which is so unfair to me.
2.I told AAT officers I applied protection visa because of my wife's belief. I explained a lot. They, however, did not trust me at all. They insisted that I applied for the protection visa to extend my stay and not because I am in need of protection. I, however, in fact ask for protection for real.
3.AAT case officers are heavily biased toward processing my case. I gave my evidence to them, but they refused me directly instead of doing any research. Their attitude showed they hold a strong bias.
4.The attitude of AAT case officers is not serious. I really did not know that I could bring my wife to the hearing to give more evidence. They tried to make excuses to make their hands clean. They should inform me that I can have my wife company me as officers knew exacting my application is so relevant to my wife. But, they failed to inform me by phone or message. This is so irresponsible and not respectful of me.
(errors in original)
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence an affidavit made by Charlotte Elizabeth Saunders on 11 July 2019. Annexed to Ms Saunders’ affidavit there is a copy of a decision of the Refugee Review Tribunal made on 7 August 2013 in relation to the applicant’s wife.
I also received the court book filed on 17 May 2019. The applicant denied ever having seen the court book previously, but I accept from exhibit R1 that it was sent to him by courier to the correct address on 20 May 2019. The applicant did not object to my receipt of the court book into evidence.
I invited oral submissions from the applicant this afternoon. He is concerned about adverse credibility findings made by the Tribunal. He is concerned that at the hearing he was told that he was lying. His concerns appear to relate to two issues in particular. One was whether he was separated from his wife. I note that the Tribunal accepted at [32] of its reasons[16] that, despite some doubts, it accepted that the applicant and his wife still live together. The other concerned the question of whether the applicant had ever returned to China following his arrival in Australia. The applicant’s movement records reproduced at page 79 of the court book appear to establish that the applicant has remained in Australia since his arrival. Whatever may have passed between the applicant and the presiding member at the hearing, I do not see in the decision any factual conclusion to the contrary.
[16] CB 115
This case is somewhat unusual in that the applicant’s claims for protection essentially depended upon those of his wife. The applicant was not maintaining any independent fear and the Tribunal concluded that, even if the applicant’s wife faced a well-founded fear of persecution in China, this had no necessary implication for the applicant.[17] That conclusion was in my view open to the Tribunal based upon the material before it.
[17] CB 115 at [35]
The applicant also asserts that the Tribunal erred by not informing him he could bring his wife to the Tribunal hearing. However, I note that on two occasions the applicant was given the opportunity to nominate his wife as a witness and on both occasions he declined that opportunity.[18] The Tribunal notes at [28] of its reasons[19] that the applicant indicated he did not wish to involve his wife.
[18] CB 94 and 97
[19] CB 114
The applicant told me from the bar table today that his wife continues to live with him and rarely leaves the house. In the circumstances, the Minister’s Department has shown remarkable forbearance over the past six years in circumstances where the applicant’s wife has apparently been living openly without any form of visa.
The Minister’s submissions also raised the issue of a purported non-disclosure certificate issued to the Tribunal. The certificate and the documents purportedly covered by it are reproduced in the court book.[20] The certificate is plainly invalid and the Tribunal was correct to find so at [30] of its reasons.[21] The applicant was given the opportunity to comment on the validity of the certificate and asserted that it was valid. In that, the applicant was plainly wrong. In any event there was no denial of procedural fairness. Further, the documents which the purported certificate covered, an identification test and internal checklist, could not have materially affected the decision of the Tribunal.
[20] CB 57
[21] CB 114-115
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Grounds 1 and 2
Grounds 1 and 2 complain that the applicant must remain in Australia to avoid persecution from the Communist Party as he was influenced by his wife’s Christian beliefs and that the Tribunal did not trust him.
Contrary to the applicant’s contention, it was his own evidence before the Tribunal that he was not a Christian and that he personally did not fear persecution upon return to China. Although the Tribunal earlier noted that the applicant’s wife’s protection visa application had been refused both by a delegate of the Minister and the Tribunal, it nonetheless found at [35] of its reasons that even if his wife was a Christian and of adverse interest to the authorities, it was not satisfied on the limited evidence before it that the applicant would be at risk of harm for that reason. Further, the Tribunal did not accept the applicant would be forced to divorce his wife.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out. Further, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[22]
[22] CED15 v Minister for Immigration [2018] FCA 451 per Thawley J at [64]
In light of the applicant’s actual evidence before the Tribunal, it was open for the Tribunal to not be satisfied that the applicant would not be at risk of harm if he were to return to China and that properly understood, the grounds simply express disagreement with the findings of the Tribunal and seeks to invite the Court to undertake impermissible merits review.
Ground 3
In ground 3, the applicant makes a bare assertion that the Tribunal’s attitude was biased and that it refused his evidence without doing any research.
As noted by Judge Smith in CIV16 v Minister for Immigration & Anor[23] at [69]:
Grounds such as this, which arise from dissatisfaction with a factual finding made against a visa applicant, are almost always based on the assertion that the finding is wrong. Very often that dissatisfaction is expressed in terms that have the appearance of a ground of judicial review such as “illogicality”, “irrationality”, “arbitrary”, “failure to consider”, “unfair”, “biased” and so on: see Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 626 [40]; [1999] HCA 21 (Gleeson CJ and McHugh J). That is not unusual. They are terms used in every day disputes outside the courts. A referee, for example, who awards a penalty to one sporting team is accused by supporters of the other team not just of being wrong, but also of bias, ignorance of the rules and irrationality.
[23] [2018] FCCA 1282
An allegation of bias is a serious one which must be clearly made out. As previously noted, the applicant’s own evidence was that he did not fear harm if he were to return to China. Further, the Tribunal expressly noted that it had considered the mandatory material it was required to at [11], namely, the Ministerial direction, PAM3 Guidelines and the DFAT country report. In the absence of further and better particulars, the ground would fail.
Ground 4
Ground 4 complains that the Tribunal should have notified the applicant that he could have brought his wife to the hearing to give evidence on his behalf.
As noted by the Tribunal, the applicant was provided an invitation to hearing and in that form, he was given the opportunity to indicate if he wished for a witness to appear and give evidence. He expressly answered “No” in response to that question. Further, it was the applicant’s own evidence that he did not wish to involve her in the matter and that the case did not have a strong connection to her.
Furthermore, s.425 of the Migration Act “does not require that the Tribunal actively assist the applicant in putting his or her case”.[24] For those reasons, the ground is not made out and would fail.
[24] Minister for Immigration v SZNVW [2010] FCAFC 41 at [32]
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 October 2019
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