Apo18 v Minister for Home Affairs
[2019] FCCA 3156
•15 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APO18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3156 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Home Affairs not to grant a Protection visa to the applicant – asserted grounds for finding jurisdictional error factually erroneous – none of the grounds asserted by the applicant establish jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.430 |
| Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 AWA15 v Minister for Immigration [2018] FCA 604 CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627 |
| Applicant: | APO18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 337 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms P. Durham |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 9 February 2018 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 2 December 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 337 of 2018
| APO18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction and Background
The Applicant is a female citizen of China aged 51 years, having been born on 20 January 1968.
By Application filed in this Court on 9 February 2018 she seeks to quash and have re-determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 18 January 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 10 September 2015 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant arrived in Australia on 1 August 2014, holding a Visitor (Subclass 600) visa (Visitor visa) and she lodged her Protection visa application on 23 October 2014.
Claims to Protection
The Applicant’s claims to protection were set out in a written statement dated 20 October 2014 (Statement) which formed part of her Protection visa application, and may be summarised in short as follows:
In 1984, the applicant’s father was tortured to death by police due to his Christian faith. The applicant’s family were told that he committed suicide. The police officer who handled the matter [hereafter Mr C, a pseudonym], warned the applicant against Christianity. Mr C wanted the applicant to be his girlfriend, and in 1985, he took the applicant to a hotel where he raped her and gave her money. Following this incident Mr C took the applicant to the hotel two to three times a week, and gave her money to open a clothes shop. The applicant complied as she wanted to give her mother a better life.
The applicant tried to escape from Mr C, but he tore up her passport. She became his sexual slave and sometimes he beat her. In 1999, the applicant escaped to Guangzhou, but Mr C found her and threatened that he would kill her mother. In 2000, Mr C caused a man whom the applicant met to have an accident. In 2003, Mr C forced the applicant to have an abortion. In 2005, Mr C’s wife confronted the applicant at her clothes shop. The applicant went to Chengdu, but Mr C found her, and gave her money to get her back. The applicant feared for her mother, as Mr C said he could have her detained. She was also scared Mr C’s wife would send someone to hurt her. The applicant arranged for her mother to live with a friend, and then left China.
The applicant prayed to God when she was depressed. In Australia, the applicant had gone to a Chinese church.
I further note that in her Protection visa application form the Applicant stated that she had been self‑employed in a clothes business in Zigong City, China during the period from August 1985 to July 2014, before coming to Australia.
Statutory Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
At the interview with the Delegate on 20 August 2015 the Applicant admitted that some of the information in her Visitor visa application was false. She claimed that the agent she had commissioned in China to obtain the Visitor visa submitted false information in her application, including that she had a husband and child. She was not aware of this false information until she arrived in Australia and looked at the Visitor visa application lodged on her behalf.
In her Decision Record the Delegate noted that she asked the Applicant why she couldn’t go back to China and that the Applicant answered “that she didn’t want to, that she enjoyed the weather and food here”.
The Delegate accepted that the Applicant had been in a relationship with the head of the local police station for almost 30 years, but held that the Applicant was not at risk from him if she returned to China.
The Delegate also found that, as submitted by the Applicant, she had never suffered harm in China because of her claimed Christian beliefs. Further, based on other matters, the Delegate found that in fact the Applicant was “not a person of the Christian faith” and faced no persecution in China on the basis of her religious beliefs.
The Delegate concluded that Australia did not owe protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and refused to grant the Protection visa to the Applicant.
Tribunal Decision
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 7 October 2015 and gave a copy of the Delegate’s Decision Record to the Tribunal at the same time. She then appeared at a hearing before the Tribunal on 17 January 2018 to give evidence and present arguments.
In the result, the Tribunal found that the Applicant was not a credible or truthful witness based on, in particular, various inconsistencies in her claims as made in her Visitor visa application and her Protection visa application and before the Delegate and the Tribunal. For example, the Tribunal noted at [17] of its Decision Record that the Applicant did not claim before the Tribunal that she had been raped by Mr C. Further, the Applicant had given inconsistent evidence about her occupation in China and had said in her Statement that her clothing shop had been established in 1985, which was at odds with her evidence at the Tribunal hearing that her clothing shop had been operating for “about seven or eight years”. At [29] of its Decision Record, the Tribunal stated:
[29] I observed that the applicant appeared to have given three different accounts of how she earned a livelihood between 1985 and her departure from China; she told the Department that she had operated a clothing shop from 1985 until her departure for Australia [see also [5] above], then told me that the business had only been established about 7 or 8 years ago and then changed her evidence and said that the business operated from about 1985 until the early 1990 after which she did not work, but was supported by Mr C. When asked to comment the applicant said that after Mr C’s wife caused problems at the shop in about 1991 she had gone to Chengdu to buy down clothes to sell to shop owners in Zigong City. She also said that while Mr C had supported her they had never lived together.
The Tribunal’s core findings were expressed at [39] – [41] of its Decision Record. I first note that the first sentence of [39] omits by way of typographical error the word “not” before the word “find”: see Marshall J’s consideration of the same typographical error in CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [27] – [29].
Paragraphs [39] – [41] of the Decision Record of the Tribunal are as follows:
[39] I do [not] find the applicant to be a truthful or a credible witness. There are a number of significant inconsistencies in the evidence which she has provided and I found her evidence at the hearing unpersuasive. In her submissions to the Department she claimed that she had operated a clothing business from 1985 until she departed China and that Mr C’s wife abused her in her shop in 2005. At the hearing she first said that the business had been established 7 or 8 years before she left China, then that it had only operated from 1985 until about 1991 when Mr C’s wife abused her. She also claimed that she had not worked after about 1991, but then claimed that she was in partnership with someone in the same clothing business and that she bought clothing in other parts of China and sold it in Zigong. In addition she stated at different times that she feared harm because of her own or her father’s involvement with Christianity and that she was not fearful of harm for reasons of religion. Finally, in her submissions to the Department she said that a man she had gone out had been injured in an accident which Mr C had arranged. However, when asked at the hearing she was unable to provide any details of the accident and agreed that she had speculated that Mr C was responsible.
[40] Some of the problems with the applicant’s evidence are relatively minor or do not relate directly to her core claims and considered in isolation they would not have caused me to reject her claims entirely. However, others are more significant and the overall the nature of her evidence and the manner in which she provided it was unpersuasive and suggestive of someone who could not recall information provided in earlier submissions and who was prepared to alter her evidence in an attempt to overcome inconsistencies or problems which I pointed out to her.
[41] After considering all of the relevant evidence I am not satisfied that the applicant has provided an honest or accurate account of her reasons for leaving China and seeking protection in Australia. I do not accept that she genuinely fears the she will be killed or face serious or significant harm from a man called Mr C because she left him after a 30 year relationship or that she genuinely fears face serious or significant harm because of her own or her father’s involvement with Christianity.
Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are verbatim as follows:
1. AAT did not believe what I said but without any reason.
AAT Said when I appeared before the Tribunal to give evidence in support of my claims, a number of inconsistencies arouse between my oral evidence and my written application. Actually from the time when I was persecuted by the Chinese government to present, many years have passed. It is also plausible that such as long time passed and I do not remember all the details of some persecutions. I have told AAT what happened, but they did not believe me any more.
2. AAT’s decision letter had many mistakes, which reflect their working attitude.
I have told the officer from the AAT my story clearly, but the AAT decision letter made so many mistakes. They could not state my story, which meant they did not understand what happen to me. In addition, if they could not understand, they should ask me to provide more or explain further, but they did not. AAT did not believe what I said and did not consider the issued from the view of Christianity practitioners, as a result, the decision made by AAT is definitely not correct.
3. AAT is not professional.
In the end, AAT’s letter concluded that I did not meet the criteria, but they did not give me specific reasons. They states my story in the whole page but not correctly, and they only gave me a short decision. Is this the real refusal letter? Or is simply a mere sham? I hope the Court could give me a fair opportunity to appeal.
Consideration
Ground 1
This Ground fails at a factual level because the Tribunal did set out the reasons for which it did not accept the Applicant’s claims. The Tribunal plainly gave reasons why it did not accept those claims and its reasons are not, in my view, without an intelligible justification or otherwise legally unreasonable. This Ground appears to accept that there were inconsistencies in the Applicant’s oral and written claims, and where not minor or trivial such inconsistencies may be properly used by the Tribunal in assessing an Applicant’s credibility.
In AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205, the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:
[24] The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).
Accordingly, Ground 1 is not made out.
Ground 2
First, there is no credible case made out that the Tribunal made “many mistakes”. It is clear from its Decision Record that the Tribunal understood the Applicant’s claims for protection and discussed them with her over the course of a Tribunal hearing of nearly one and a half hours, but was not persuaded by those claims. It is also clear from the Decision Record that the Tribunal, on multiple occasions, invited the Applicant to comment upon its concerns regarding her claims, asked her to clarify her position on several issues and to explain some aspects of her claims in further detail.
Second, it is not the role of the Tribunal to prod or provoke the Applicant to “provide more or explain further”. The fundamental roles of the Applicant and the Tribunal in the context of the Tribunal hearing were that it was for the Applicant to advance whatever evidence, claims or arguments she wished to advance, and it was for the Tribunal then to decide whether her claims had been made out: Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ. The position was, as agreed by the parties with the evident approval of Banks-Smith J in CJR17 v Minister for Immigration & Border Protection [2018] FCA 1627 at [50], as follows:
[50] Both parties acknowledged that:
(a)the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [11], [30]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187];
(b)it was for the appellant to have advanced whatever evidence or argument he wished to advance in support of his claim that he was entitled to the visa. The Tribunal must then determine whether that claim is made out: Abebe v Commonwealth at [187];
(c)the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; and
(d)there was no duty on the Tribunal to make its own enquiries: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1].
To similar effect Graham J had said of proceedings before the Tribunal in SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499 at 506 [37]:
[37]The Act does not require that the tribunal actively assist an applicant in putting his case nor does it require the tribunal to carry out an inquiry in order to identify what that case might be: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; 75 ALD 151; [2003] FCAFC 126 at [36].
Further, the issue of the Applicant’s involvement with Christianity was clearly considered: see in particular [22] – [23], [36] – [38] and [41] of the Tribunal’s Decision Record.
Finally, this Ground seeks to invite a merits review of the decision of the Tribunal which is not available in this Court.
Accordingly, Ground 2 also is not made out.
Ground 3
This Ground also fails. The decision of the Tribunal is not a “mere sham”. In my view, it constitutes a meaningful statement, consideration and rejection of the Applicant’s claims and complies with the requirements of s.430(1) of the Migration Act 1958 (Cth), and the Decision Record is not notably “a short decision”.
Accordingly, Ground 3 is not made out.
Conclusion
In my view, the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 4 November 2019
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