AOW16 v Minister for Immigration

[2017] FCCA 2188

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOW16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2188

Catchwords:
MIGRATION – Application for Constitutional writ – protection visa – the applicant had a real and meaningful hearing – s 438 certificate – documents the subject of the certificate were not credible, relevant or significant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 24AA, 424B, 438, 476

Applicant: AOW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 604 of 2016

Judgment of: Judge Street

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Sydney

Delivered on: 8 September 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Baril
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 604 of 2016

AOW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 February 2016, affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of China. He arrived in Australia on 11 July 2008 as a holder of an entertainment subclass 420 visa. The applicant originally applied for protection on 18 August 2008, which was refused by a delegate on 24 October 2008. The applicant sought a review of that decision, which was unsuccessful, and the applicant sought to challenge the decision of the Tribunal unsuccessfully before the Court and the application was dismissed on 18 May 2009.

3. The applicant then remained in Australia unlawfully until 14 October 2013, when he lodged a new application for protection on the grounds of complementary protection.

4. On 11 June 2014, the delegate found the applicant failed to meet the criteria for complementary protection and refused to grant the applicant a protection visa.  

5. The applicant claims to fear harm in summary arrives from corrupt local authorities in China. The applicant alleged that in 2006 villages had their farmland expropriated by members of a village committee who sold it to developers, and that the villagers received very little compensation. The applicant alleged that his father and other villages protested the land expropriation and were arrested. The applicant alleged that his father was detained for four months in a particular detention centre. The applicant alleged his mother was beaten and that his family suffered in many ways. 

6. The applicant wrote and distributed leaflets exposing the corruption of the village officials. The applicant alleged this led other villagers to follow the applicant’s example. The applicant alleged the officials offered the applicant a bribe to stop which he refused. The applicant alleged that his employer put pressure on him by withholding his salary and threatening to dismiss him. 

7. In September 2007, the applicant alleged he was introduced to a particular person and that he provided that person with evidence of the corruption and illegal behaviour of the village committee. The applicant alleged that person was arrested on charges of inciting anti-government movement. The applicant alleged that he organised 200 citizens to take part in a sitting demonstration, demanding that particular persons are released and an investigation into corruption and reasonable compensation for the owners of the expropriated land. The applicant alleged that he and the other protesters were arrested at that event. The applicant alleged that he was detained for more than a month and he was inhumanely persecuted. 

8. The applicant alleged that his wife spent a lot of money bribing police and that the applicant was then released but warned not to engage in any anti-government action and forced to report to the Public Security Bureau once a week. The applicant alleged that on one occasion the village secretary threatened the applicant, alleging that his fate is that of his father’s. The applicant alleged that he punched the secretary in the face and was beaten by six thugs. The applicant alleged that following this incident, he was fined by the police and put under surveillance and stalked and that his employer began colluding with officials and he received criticism for his theatre performances. The applicant alleged that he bribed officials so that he would be able to leave China. The applicant alleged that the police in China continue to make trouble for his wife and parents and that the applicant’s name had been put on a black list. 

The Tribunal’s decision

1. The applicant made an application for review on 6 July 2014. A certificate dated 11 June 2014, was issued under s 438(1)(b) of the Act in respect of two folios in a particular file. It was alleged that disclosure of this information would be contrary to the public interest because the two folios contained information given by a third party whose existence cannot be disclosed.  The first respondent has tendered into evidence the documents the subject of the two folios. One is a confirmation on site interpreting request and the other is an interpreter service delivery plan. Neither document has any possible relevance to the issues raised in respect of the application for review. 

2. The applicant was invited to attend a hearing before the Tribunal on 21 May 2015. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the applicant’s background in respect of the application on the grounds of complementary protection. The Tribunal correctly set out the relevant law. The Tribunal expressly identified the material to which it had regard which did not refer to any of the material the subject of the s 438 certificate. The Tribunal set out in detail the applicant’s claims.

3. The Tribunal identified having serious concerns about the applicant’s credibility and whether the applicant was telling the truth in relation to significant aspects of his claims. The Tribunal did not find the applicant to be a credible witness and was not satisfied that he told the truth in relation to fundamental aspects of his claims. The Tribunal found the applicant’s evidence not to be consistent, plausible or persuasive. The Tribunal summarised the reasons in support of the adverse credibility findings. The Tribunal referred to having concerns that the applicant failed to familiarise himself with the delegate’s reasons for refusing his second application for protection and to provide the Tribunal with evidence to address the issues identified that caused the delegate to refuse his application.

4. The Tribunal noted the total absence of any documentary evidence provided by the applicant to support or substantiate his claims. The Tribunal found that the applicant’s story was unsubstantiated by any independent evidence whatsoever and that the story contains multiple inconsistencies as well as implausible explanations for the events that the applicant alleges occurred. 

5. The Tribunal identified that the applicant had provided multiple inconsistencies in his evidence to the Department and the Tribunal so as to raise serious doubts about the truthfulness of his claims. The Tribunal summarised the inconsistent information provided by the applicant to the Tribunal. The Tribunal found that the applicant had provided false information in relation to being detained at a particular centre. The Tribunal observed this raised serious doubts over the applicant’s overall claims. The Tribunal identified that the applicant provided inconsistent information in relation to the particular person the alleged was arrested and her relationship to the theatre troupe remember.

6. The Tribunal raised the inconsistencies with the applicant in the course of the hearing and the Tribunal’s explanation did not accord with what was heard by the Tribunal member. The Tribunal member identified inconsistent evidence being provided in relation to the duration of the claimed detention. The Tribunal was not satisfied with the applicant’s explanation for his inconsistent evidence in relation to the duration of his claimed detention. The Tribunal identified that the applicant provided inconsistent information in relation to evidence regarding the person who was allegedly arrested. 

7. The Tribunal identified that the applicant provided inconsistent information in relation to the conditions which he claims were imposed on him following his claimed detention. The Tribunal noted the applicant provided inconsistent evidence in relation to the events following his claimed detention. The Tribunal found that the applicant provided inconsistent evidence regarding injuries he claimed to have sustained as a result of the confrontation with the village secretary and alleged thugs. The Tribunal also made reference to the applicant during the hearing raising a new claim that he had a fight with the secretary’s son.

8. The Tribunal found the failure to mention the fight with the village secretary’s son in any prior information either by the Department or the differently constituted Tribunal raised doubts in the mind of the Tribunal regarding the truthfulness of the applicant’s new claim. The Tribunal found that the applicant had provided inconsistent and unpersuasive evidence, as well as implausible explanations, in relation to a range of aspects impacting on the claims by the applicant, raising serious doubt about the truthfulness of his claims. 

9. The Tribunal identified reasons for concern in relation to the applicant’s claims about his family land being expropriated. The Tribunal found that the applicant provided inconsistent evidence regarding his involvement in his father’s farm, his occupation and farm land that his father still retains. The Tribunal found that the applicant is not a person of interest to the Chinese authorities. 

10. The Tribunal was not satisfied that the applicant was detained by the police or was under surveillance because of his involvement in organising a sit-in protest concerning the particular person’s detention and land expropriation as evidenced by the fact he was able to leave China without incident. The Tribunal concluded that the events described by the applicant did not occur and that he has fabricated his claims for the purpose of his application for protection. The Tribunal formed the view that the applicant has not been truthful in his claims and that the applicant was completely lacking in credibility. 

11. The Tribunal rejected the entirety of the applicant’s claims. The Tribunal did not accept that the applicant will be subject to any harm from Chinese authorities or villagers with political power if he returns to China. The Tribunal found that there is no risk that the applicant will suffer significant harm now or in the reasonably foreseeable future if he returns to China. The Tribunal found that the applicant failed to meet the criteria under s 36(2(aa) of the Act and affirmed the decision under review.

Hearing in this Court

1. On 28 April 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. The grounds in the application are as follows. 

   1. Pursuant to Sub-section 424AA (1) of the Migration Act, 1958, If an applicant is appearing before the Tribunal because of an invitation under section 425; the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under the review; and the Tribunal Must:

   a. ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   b. orally invite the applicant to comment on or respond to the information; and

   c. advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   d. if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   As requested, I was appearing in the Tribunal hearing on 21st of May, 2015, giving evidence and my arguments to support my review application. During the course of the Hearing, the Presiding Member put on me a number of concerns (Paragraph 26; 33; 35; 37 and 41) in relating to my evidence given to the Tribunal in the past, under 424AA of the Act;

   However; I was not made aware that I am enshrined by the Act to seek for additional time to respond to the information or concerns that the Tribunal relied on in affirming the decision under the review, which unequivocally erred in applying s424AA of the Act;

   2. Furthermore; having failed to act in accordance with s424AA of the act, the Tribunal has consequentially violated the section 422B of the act, which prescribes that the Tribunal should conduct the hearing in a fair and just manner.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal decision was unlawful or unfair the decision would be set aside and sent back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair the applicant’s application will be dismissed with costs. 

4. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table, the applicant maintained what he told the Tribunal was the truth. The applicant identified during the hearing before the Tribunal he was concerned that he may not be believed.  The Tribunal provided rational and logical reasons for the adverse credibility findings that were open on the material before the Tribunal. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Ground 1

1. In relation to ground 1, no transcript has been put on to support the applicant’s allegation that he was not given time to comment or respond in respect of information raised before the Tribunal. On that basis alone, ground 1 cannot be made out. 

2. The Tribunal’s decision identifies that the Tribunal did put information to the applicant in accordance with s 424AA of the Act. In the absence of evidence to the contrary, the Court finds that the Tribunal complied with its obligations under s 424AA of the Act in respect of any obligation under s 424A of the Act. Further, there is no information identified in ground 1 that would have enlivened any obligation under s 424A of the Act. 

3. In relation to the certificate issued in the present case, the documents the subject of the certificate have been put into evidence and were clearly irrelevant to the issues the subject of the application for review.   The documents could not possibly have affected the assessment of the applicant’s credibility or in any way assisted the applicant in relation to his claims. The documents were not credible, relevant or significant. No jurisdictional error is made out by reason of the failure to disclose the certificate or the documents the subject of the certificate to the applicant in the present case. 

4. Further, this is a case where as the documents could not possibly have had any impact and there is no practical injustice to the applicant by reason of the non-disclosure of the certificate or the documents the subject of the certificate. If there was found to be any error, relief should be refused on discretionary grounds as the documents could not possibly have impacted on the outcome of the review. Further, the documents the subject of the certificate could not have engaged any obligation under s 424A of the Act.  No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, that assumes an alleged contravention that has not been made out. On the face of the material before the Tribunal, there was no step taken under s 424B of the Act. No contravention of s 424B of the Act is made out. On the face of the material before the Court, the applicant had a real and meaningful hearing and the Tribunal raised with the applicant in the course of the hearing its credibility concerns. 

2. Further, this is a case where the Tribunal identified credibility concerns in relation to the applicant. Accordingly, the applicant was clearly on notice that his credibility was an issue at the time of the application for review and having been informed by the invitation to attend the hearing, the Tribunal was able to make a favourable decision on the material before the Tribunal. No jurisdictional error is made out by ground 2. 

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 October 2017