AQY16 v Minister for Immigration
[2018] FCCA 1046
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQY16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1046 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to afford procedural fairness – whether the Tribunal failed to make independent findings – whether the Tribunal made findings without supporting evidence – s.438 certificate – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438, 375A, 476 Evidence Act 1995 (Cth), s.55 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 |
| First Applicant: | AQY16 |
| Second Applicant: | ARH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 695 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 23 March 2018 and 13 April 2018 |
| Date of Last Submission: | 13 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Applicants | First applicant in person and on behalf of the second applicant |
| Solicitor for the Respondents: | Mr K Eskerie of Sparke Helmore Lawyers |
ORDERS
The application made on 23 March 2016 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 695 of 2016
| AQY16 |
First Applicant
ARH16
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 March 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 8 March 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Alanna Lucchese, solicitor, made on 28 March 2018 with relevant exhibit.
At the resumed hearing on 13 April 2018, the Minister handed up a copy of folio 59 of the Minister’s department’s file relating to the first applicant which was inadvertently excluded from the exhibit referred to in the affidavit of Ms Lucchese and submitted to the Court. The Minister confirmed that folio 59 was included in the copy served on the applicants. Given that the applicants had been served with this document, the resumed hearing proceeded on the basis that folio 59 was a part of the exhibit to the affidavit of Ms Lucchese made on 28 March 2018.
Background
The first and second applicants are citizens of the People’s Republic of China (CB 95 and CB 109). The second applicant is the first applicant’s wife. The first applicant initially made an application for a protection visa on 7 January 2005 (CB 1 to CB 29). In that application, the first applicant claimed to fear harm on the basis of his religion (CB 19.5). That application was refused by a delegate of the Minister on 26 February 2005 (CB 30 to CB 45).
The first applicant applied for review to what was then the Refugee Review Tribunal (now the Administrative Appeals Tribunal). That Tribunal affirmed that delegate’s decision on 23 June 2005 (CB 46 to CB 62). The first applicant sought judicial review of that Tribunal decision. The Federal Circuit Court, by consent, remitted the matter to the Tribunal for reconsideration (CB 64).
On 20 July 2006, a differently constituted Tribunal affirmed the delegate’s decision (CB 65 to CB 81). The first applicant then unsuccessfully sought judicial review of that Tribunal decision ([2] at CB 205).
The second applicant also previously applied for a protection visa on 24 November 2005, which was refused by the Minister’s department on 21 February 2006. That decision was subsequently affirmed by a differently constituted Tribunal on 21 June 2006 ([4] at CB 205).
Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”), the applicants made the application for the visas which forms the basis of these proceedings. That application was received by the Minister’s department on 6 February 2014 (CB 83 to CB 123). The applicants were assisted by a registered migration agent (CB 91). The first applicant made claims to protection, and the second applicant applied as a member of the first applicant’s family unit.
The first applicant claimed to fear harm from “gangsters, money lenders and the authorities” on return to China. The first applicant claimed to fear harm on the basis that he had previously owned a “wholesale” clothing business, and that his “competitors and their associated thugs” came to his “place” for money (CB 101.5). During one confrontation, the first applicant claimed that he pushed one of the thugs who then accused him of breaking his arm, and demanded a “large amount” of money as a “settlement”. The first applicant claimed to have then been “locked up” by the police, but released after paying the money.
The first applicant claimed that the thugs threatened to kill him and continued to “attack” his family, and then accused him of assault (CB 100.1 and CB 101.5). He claimed to have been detained a second time, and released upon making another payment of money. Following this, the first applicant did not have enough money to pay his “suppliers”, and was unable to make his monetary repayments to his “lenders”. The applicants then left for Australia, and fear harm on return as they will be required to “re-operate” their business in order to pay the debt, and that they will be “harmed and persecuted again” as a consequence (CB 101.5).
The applicants were invited to, and the first applicant attended, an interview with the delegate on 20 May 2014 (CB 145 to CB 149 and CB 156). The delegate refused the grant of the visas on 26 May 2014 (CB 150 to CB 169).
The applicants applied for review to the Tribunal on 18 June 2014 (CB 170 to CB 172). They continued to be represented by a registered migration agent (CB 171.7). The applicants were invited to, and attended, a hearing before the Tribunal on 9 October 2015 (CB 178 to CB 182 and CB 186 to CB 188). By letter dated 12 October 2015 and sent by email to their representative, the applicants were invited to comment on, or respond to, certain information relevant to their application for the visas (CB 196 to CB 200). No response to the invitation was received by the Tribunal ([50] at CB 211).
The Tribunal affirmed the delegate’s decision on 8 March 2016. The applicants were notified by email sent to their representative on the same date (CB 201 to CB 217).
Before the Tribunal, the first applicant also claimed to fear harm on the basis of his religion, the “Huhan Pai (Shouters)” religion ([17] at CB 207). The Tribunal also discussed the first applicant’s claims to fear harm as a result of his business ([20] at CB 208 to [34] at CB 209).
The Tribunal asked the first applicant how much he paid to be released from detention the first time. The first applicant replied that he did not know because “his father arranged for him to be released and paid the money” ([20] at CB 208). The Tribunal then put to the applicant that his evidence about that incident was “vague and lacking in detail”, which may lead the Tribunal to “not accept that he [was] telling the truth”. The first applicant replied that he did not know “many details because his father looked after it all” ([21] at CB 208).
The Tribunal also asked the first applicant why he believed he would face harm on return to China “after all this time”. The first applicant indicated that his father told him that a lot of other “peoples’” businesses that were going well in China, were being “harassed by [the] same person”. The Tribunal put to the first applicant that on his own evidence his father, brother and brother-in-law appear to be able to operate businesses in China “without problems”. The Tribunal asked the first applicant why he could not do the same, but the first applicant “did not have a direct response to this” ([29] at CB 209).
The second applicant also gave oral evidence to the Tribunal ([35] at CB 209 to [50] at CB 211). The second applicant confirmed that she did not make her own claims to protection ([35] at CB 209). The second applicant gave evidence that she and the first applicant had paid the money for the first applicant to be released from detention the first time “from their savings” ([39] at CB 210). When the Tribunal put to the second applicant that the first applicant gave evidence that his father had paid the money and arranged for his release, the second applicant said that “their money was not separate from his parents” ([39] at CB 210).
The second applicant also claimed to have been threatened at her house, and in another incident she claimed that when the second applicant was in their shop, a gangster “came and hit [her] on the head”, but that she did not tell her husband about these incidents ([40] at CB 210 to [43] at CB 210 to CB 211). The second applicant also raised with the Tribunal that her husband was “one of the Shouters before”, but that she did not have “much knowledge” in this regard ([45] at CB 211).
The Tribunal found the first applicant’s evidence about his religious practice to be “internally inconsistent, vague and lacking in detail” ([58] at CB 212). The Tribunal did not accept that the first applicant is, or was, a “genuinely practising Christian of the Huhan Pai (Shouter) in China”. The Tribunal also found the second applicant’s evidence in this regard to be “lacking in convincing detail and credibility ([57] at CB 212 to [58] at CB 212 to CB 213).
The Tribunal was willing to accept that the first applicant had “owned and operated a wholesale clothing and shoe business” in China ([59] at CB 213). Despite the lack of documentary evidence provided by the first applicant regarding his claimed detention, and the “limited, vague and general nature” of his evidence in this regard, considering the “passage of time”, and that the “incidents are not entirely implausible”, the Tribunal accepted that the “applicant’s business was subject to harassment and disruption by hired thugs”, and that he had been detained twice as he had claimed ([61] at CB 214).
However, the Tribunal did not accept that the first applicant had a “significant outstanding loan or that anyone [was] pursuing him in relation to the repayment of money” in China as he had claimed ([63] at CB 214).
Further, the Tribunal found that the applicant made “contradictory claims” about whether he intended to re-open his business if he were to return to China. Given the passage of time, the Tribunal did not accept that the first applicant would re-open his business in China, and also given the lack of any “recent contact” from creditors, that anyone “would pursue him” if he were to open a new business ([66] at CB 215).
The Tribunal also did not accept the first applicant’s claims that he would be “deprived of his right to access social equality” as this did not come within the meaning of “significant harm” for the purposes of the grant of the visa ([69] at CB 215).
The Tribunal considered the first applicant’s claims singularly and cumulatively, but was not satisfied that there were substantial grounds for believing that the first applicant would face a real risk of significant harm on return to China for the reasons that he had claimed
([67] – [70] at CB 215). Having regard to its previous findings, the Tribunal found that the second applicant also did not meet the relevant criteria for the grant of the visa ([71] – [72] at CB 215).
Application to the Court
The grounds of the application to the Court are in the following terms:
“1. The Tribunal failed to afford procedural fairness.
2. The Tribunal failed to make independent findings, but rather relied upon the previous decisions.
3. The Tribunal made a finding without supporting evidence. Particularly, the Tribunal subjectively infer that the applicant cannot or will not re-open the same business he previously had in China. The Tribunal also failed to provide supporting evidence that ‘given the passage of time and absence of any recent contact from creditors that anyone would pursue him if he were to open a new business’.”
[Errors in original.]
Before the Court
By orders made by consent by a Registrar of the Court on 5 May 2016, the applicants were given the opportunity to file any amended application and further evidence by way of affidavit. The applicants filed no further documents in this regard. By orders made by a Registrar of the Court on 6 October 2016, the parties were directed to file written submissions. The applicants filed no written submissions. The Minister filed written submissions on 16 March 2018 (“the Minister’s first written submissions”).
At the hearing on 23 March 2018, the applicants appeared in person with the assistance of an interpreter in the Mandarin language. The Minister was represented by a solicitor. On that occasion, and as a model litigant, the Minister raised the matter of a certificate issued pursuant to s.438 of the Act, having been issued by an officer in the Minister’s department. I adjourned the hearing to allow the applicants time to consider their response to this matter. I gave the Minister the opportunity to file further written submissions which would also assist the applicants in understanding the matter raised by the Minister. The Minister filed further written submissions on 29 March 2018 (“the Minister’s second written submissions”).
At the resumed hearing on 13 April 2018, the first applicant appeared in person and on behalf of the second applicant. The first applicant submitted that he wrote the grounds of the application himself and that his migration agent assisted him with translating the grounds into English and lodging his application to the Court. The first applicant’s oral submissions before the Court are dealt with below.
Consideration
Ground one of the application asserts the Tribunal “failed to afford” (presumably the applicants) procedural fairness. No particulars whatsoever have been provided.
When asked specifically to address ground one, the first applicant stated that the Tribunal referred to country information derived from the United Kingdom, and referenced sources dealing with the practice of religion in China. Further, the first applicant stated that he was not given the opportunity to comment on the country information.
The difficulty for the first applicant is that he directed attention to that part of the Court Book containing the delegate’s decision. It is the case that the delegate relied on such country information. However, the Tribunal did not address this country information because it rejected the first applicant’s claim that he engaged in religious practice in China. The Tribunal did so because it found his evidence to be “internally inconsistent, vague and lacking in detail” ([58] at CB 212).
No transcript of the Tribunal hearing has been put before the Court. Therefore, the only evidence of what occurred at the Tribunal hearing are the Tribunal’s own references in its decision record. Paragraph 17 (at CB 207) of that decision record, reveals that the matter of the first applicant’s claimed religious conduct in China was the subject of discussion with the Tribunal.
Before the Court, it became clear that the first applicant’s real complaint was that the Tribunal found adversely to his credit. In the circumstances, this was not a proper assertion of a denial of procedural fairness. The Tribunal’s findings in this regard were reasonably open to it and based on, and arose from, the material before it. The Tribunal gave cogent explanations, probative of the evidence before it, for its disbelief of the first applicant’s claims.
In any event, no breach of Division 4 of Part 7 of the Act is indicated on the material before the Court (see further below in relation to the matter of the s.438 certificate).
Ground two asserts that the Tribunal failed to make “independent findings”, because it “relied upon the previous decisions”. No explanation of this ground was given by the first applicant before the Court. The first applicant stated that he could not tell the Court what was meant by ground two.
It may be that this is a complaint that the Tribunal did not consider the first applicant’s claims to protection pursuant to s.36(2)(a) of the Act. That is, in effect, the first applicant’s claims to satisfy the definition of “refugee”.
If this is what was meant by the author of ground two then no legal error is revealed.
As set out above, the application for the protection visas which was the subject of the review by the Tribunal post-dated the Full Federal Court decision in SZGIZ. The applicants had previously applied for protection visas based on the Refugees Convention criterion (see above at [4] – [8]). These applications had been determined. The Tribunal was not required to consider the Refugee Convention claims, even in circumstances (as in the current case) where the delegate considered them (Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 and AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424; (2015) 244 FCR 131).
In relation to the applicants’ claims for protection under the complementary protection criterion (s.36(2)(aa) of the Act), there is nothing to indicate the Tribunal failed to conduct its own independent assessment of their claims. Ground two is not made out.
Ground three asserts that the Tribunal’s finding that the first applicant could not, or would not, re-open the “same business” he previously ran in China, was made without “supporting evidence”. Further, that the Tribunal also “failed to provide supporting evidence” for its finding that no one would pursue him even if he were to re-open the business in China.
This directs attention to [66] (at CB 215) of the Tribunal’s decision record as follows:
“The applicant had made contradictory claims about whether he intends to re-open his business, stating at one point that he cannot return to his old business and then that he will have to go back to his old business and the same people will trouble him. Given the passage of time since he left China and since he had his old business, the Tribunal does not accept that the applicant can or will re-open the same business he previously had in China. It also does not accept, given the passage of time and absence of any recent contact from any creditors that anyone would pursue him if he were to open a new business. Therefore, the Tribunal does not accept that the applicant will face a real risk of significant harm from past creditors in the foreseeable future on the basis of running a business in China.”
As the Minister submits, for the applicants’ ground to succeed, what is required is that there was no evidence at all upon which the Tribunal’s findings could be based (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 and see [21] of the Minister’s first written submissions). Even ‘slight’ evidence will defeat a no evidence argument (VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [18] – [19]).
In the current case, the applicants’ ground ignores that the evidence probative of the Tribunal’s findings was the first applicant’s own evidence. On what is before the Court, the Tribunal’s finding that the first applicant had provided contradictory evidence was reasonably open to it on what was before it.
The Tribunal is not required to disprove an applicant’s claims or to find evidence to disprove those claims. The Tribunal’s relevant exercise of its jurisdiction requires a proper consideration and evaluation of the evidence before it. It was ultimately up to the first applicant to provide the evidence such as to satisfy the Tribunal that he meets the criterion for the grant of the visa. The Tribunal is not required to uncritically accept his evidence (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J, Minister for Immigration & Ethnic Affairs v Guo[1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J). No jurisdictional error is revealed by ground three.
The grounds of the application to the Court are not made out.
The Minister properly, as a model litigant, drew attention to a certificate issued by an officer of the Minister’s department pursuant to s.438(1)(a) of the Act dated 2 June 2014 (“the s.438 certificate”), relating to documents on a file held in the Minister’s department which related to the first applicant (CB 82).
The affidavit of Ms Lucchese refers to a bundle of documents which the Minister seeks to tender as an exhibit in these proceedings. These have been provided to the Court in a sealed envelope consistent with what was said in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”) (at [67]).
As set out above (at [27]), the applicants were given the opportunity to consider the s.438 certificate issue.
The affidavit of Mr Lucchese was read into evidence. The s.438 certificate was already in evidence as a part of the Court Book. The documents to which the s.438 certificate applied were admitted into evidence pursuant to s.55 that the Evidence Act 1995 (Cth) (see Minister for Immigration and Border Protection vCQZ15 [2017] FCAFC 194 (“CQZ15”) at [62] – [65], Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) at
[62] – [69] and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”) at [30]).
As set out above, ground one of the application to the Court asserts a failure by the Tribunal to provide procedural fairness to the applicants. In MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”) the Court held that in that case, the failure by the Tribunal to refer to the s.438 certificate (which in that case was held to have been invalidly issued), and the documents it purported to cover, resulted in a denial of procedural fairness. Therefore, the documents in the current case are relevant to the Court’s consideration of this issue.
Given what is set out in the s.438 certificate, the Minister accepts that the certificate is invalid (see MZAFZ at [36] – [37]). The Minister also accepts that there is no evidence before the Court that the Tribunal invited the applicants to comment on the s.438 certificate, or the documents to which it related ([5] – [7] of the Minister’s second written submissions).
In this light, the circumstances of this case, on their face, do raise the issues of concern as set out in MZAFZ and Singh (albeit the latter case concerns s.375A of the Act, which is analogous to s.438 for current purposes).
However, I agree with the Minister that the current circumstances are distinguishable in important ways from the circumstances of those authorities ([8] – [11] of the Minister’s second written submissions).
First, as was made clear in BJN16, BEG15 and CQZ15, a failure by the Tribunal to refer to the s.438 certificate may give rise to a denial of procedural fairness, but MZAFZ and Singh do not stand for the proposition that that will always be the case. As the Full Federal Court made clear, it is necessary to consider the circumstances of each case, and the consequences of the nondisclosure for the applicant (see BJN16 at [63], CQZ15 at [68] and BEG15 at [30]).
The Minister described the documents in his second written submissions, and grouped them, as follows ([4] of the Minister’s second written submissions):
“The documents covered by the [s.438] certificate can be described as follows:
4.1 Internal Department documents relating to the [first] applicant’s application for Ministerial intervention in 2008 (folios 94-97, 110-112, 115-120);
4.2 Department records in the form of screen prints from the Department’s computer database ‘Integrated Client Services Environment’ (ICSE records) relating to the [first] applicant (folios 58, 81, 92, 98, 107-109);
4.3 Department records in the form of ‘Movements Details’ relating to the [first] applicant (folios 102-106);
4.4 Internal documents and Court documents relating to the [first] applicant’s previous Federal Magistrates Court proceedings (SYG2140/2005) which resulted in the applicant’s first protection visa application being remitted to the then Refugee Review Tribunal for consideration (folios 60, 67-70); and
4.5 Other administrative documents and communications of the Department (folios 59-60).”
[Note: the reference to folio 60 in [4.5] was in error.]
I agree with the Minister that all of the documents lack any material connection to the applicants’ claims to protection as they were relevant to the Tribunal’s consideration of the review (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566).
In the circumstances it is reasonable to infer that the absence of any reference by the Tribunal to the documents, and the contents of the documents themselves, that the Tribunal did not consider the documents to be relevant to its task. It therefore did not “act on” the documents (MZAFZ at [40] and BEG15 at [32] – [33]).
Further, in relation to each group of documents (see [55] above), the documents listed at [4.1] (at [55] above), relate to the applicant’s request for Ministerial intervention made in 2008. It is the case that in those documents, reference is made to two earlier Tribunal decisions relating to the first applicant. In particular, that in those decisions, the respective Tribunal member made adverse findings as to the first applicant’s credit.
It is important to note that the context of the current consideration is whether the applicants were denied procedural fairness by the Tribunal’s lack of reference to the s.438 certificate and the documents to which it related.
In this light, the first applicant would have been on notice of the adverse findings made by the earlier Tribunal members. Both Tribunal decisions were also the subject of applications for judicial review by the first applicant.
Further, on the evidence before the Court, the Tribunal put to the first applicant at the Tribunal hearing, that the earlier considerations of his claims had been rejected because of adverse views as to the truthfulness of his claims. The first applicant was given the opportunity to comment on the earlier considerations of his claims. He was specifically told that the Tribunal may take into account his earlier evidence ([17] at CB 207).
In the circumstances, the first applicant was not denied the opportunity to comment on his earlier evidence, or the view taken of it, by the “earlier” Tribunal members.
I also agree with the Minister, that in circumstances where the first applicant and the Tribunal knew of the earlier adverse credibility findings, the reference to those findings in the documents covered by the s.438 certificate, could not be said to be material to the Tribunal’s consideration (see [11] of the Minister’s first written submissions).
In relation to the internal departmental documents at [4.2] and [4.3] (at [55] above), there is nothing in those documents to indicate that they were relevant to the Tribunal’s task.
The documents at [4.4] (at [48] above), relate to the first applicant’s earlier judicial review proceedings. These related to the successful remittal to the Tribunal, by consent, of the first applicant’s earlier Tribunal review application. The applicant plainly would have known of this (BEG15).
On the evidence before the Court, I cannot see that there was any failure of procedural fairness in the circumstances of this case.
Nor can I see that the applicants’ knowledge of the existence of the s.438 certificate could reasonably have made any difference to the review. There was no practical injustice suffered by the applicants (AVO15 at [91] and BEG15 at [33]). In the circumstances, no jurisdictional error is revealed.
Conclusion
It is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 4 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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