ASZ15 v Minister for Immigration - [2016] FCCA 1851

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASZ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1851

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal considered the applicant’s claims to fear harm in China – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 48A, 65, 411, 474
Migration Regulations 1994 (Cth) reg.2.01.
Federal Circuit Court Rules 2001 (Cth) r.44.12

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216
Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 100 FCR 495
SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53

Applicant:

ASZ15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1312 of 2015

Judgment of:

Judge Emmett

Hearing dates:

20 July 2016

Date of Last Submission:

20 July 2016

Delivered at:

Sydney

Delivered on:

20 July 2016

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents:

Mr Tom Galvin
(Minter Ellison Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1312 of 2015

ASZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 30 April 2015 and handed down on 1 May 2015 (“the Tribunal”).

Background

The applicant claims to be a citizen of China. On 26 February 1997, the applicant arrived in Australia on a business visa and holding a Chinese passport.
On 19 March 1997, the applicant lodged a protection visa application which was refused by a delegate of the Department of Immigration and Border Protection (“the Department”). As a consequence on 10 April 2001, the applicant departed Australia.
On 28 March 2002, the applicant returned to Australia on a visitor visa, holding a South Korean passport in a different name.
On 8 May 2002, the applicant lodged a protection visa application in that Korean name.
On 16 August 2002, a delegate of the Department (“the Delegate”) refused to grant the applicant a protection visa.
On 16 August 2002, a copy of the Delegate’s decision was sent to the applicant. On 22 August 2002, that notification letter was returned to the Department with the envelope marked “return to sender”.
In 2014, the applicant was detained by the Department. On 18 June 2014, the applicant attended an interview with a delegate of the Department and gave his name as the Korean name that had been in his Korean passport and stated that he did not want to return to China.
On 9 July 2014, the applicant was correctly notified of the Delegate’s decision dated 16 August 2002.
On 23 July 2014, the applicant lodged an application for review of the Delegate’s decision.
On 1 May 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 13 May 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a 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, 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, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) 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.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The proceeding before this Court

The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 25 June 2015, the applicant attended a directions hearing before me. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 2 July 2015.
On 2 July 2015, the applicant appeared before me for a show cause hearing. On that occasion, the matter was set down for final hearing today. The applicant was again given leave to file and serve any further evidence by way of affidavit as well as submissions in support.
At the outset of today’s hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The applicant confirmed that he relied on the grounds contained in his Amended Application, filed on 26 June 2015, as follows:
“1. The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the applicant that he had a well-founded fear of being persecuted in China.
Particulars
(a) At the hearing of the RRT:
The applicant told the Tribunal when he returned to China, after being detained at Villawood Immigration Detention Centre, he was questioned by the authorities about the application he had made for protection in Australia. (Decision Record, Paragraph 10)
(b)The applicant's “Personal Statement” in support of his application for a protection visa stated that if he return to China, he will be questioned by a policeman and at his age he will be unable to withstand the conditions in prison. The Tribunal accepts that upon his return to China the authorities may be aware that the applicant has applied for protection in Australia. (Decision Record, Paragraph 13)
2. The RRT committed jurisdictional error in that it failed to take into account a relevant consideration, namely the evidence of the applicant as to the real risk that he will suffer significant harm.
The applicant has lived in Australia for so many years. He dared not to go back to China just because of the foreseeable harm from the authorities. However, due to the reason that he has stayed in Australia for so many years, he could not provide more evidence about his situation in China.”
(Errors in original).
The applicant also read an affidavit affirmed by him on 23 July 2015 which purported to annex a transcript of the Tribunal hearing. The applicant made some unparticularised complaints that the Tribunal asked him brief questions, thereby inviting brief answers. The applicant did not otherwise refer in any detail to the transcript. The applicant confirmed that he had no other documents to provide to the Court in support of his application.
Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

Ground 1

In relation to Ground 1, the applicant referred to questions by the Tribunal that he described as brief. The applicant claimed that those questions invited brief answers. The applicant also said that if he returned to China, he would be thrown into prison; that he had not been able to get a lawyer; and, that he had told the truth in relation to his two passports. Further, the applicant said that the Tribunal Member was surprised that he had two passports and appeared shocked when he said that he was a citizen of China. The applicant stated that the Department had been fully aware that he held two passports.
The applicant confirmed to the Court that the substance of his complaint in Ground 1 was that the Tribunal had not accepted that he had a well-founded fear of persecution in China, and that it erred in doing so.
The Tribunal’s decision record makes clear that the Tribunal was aware of the unusual history of this matter.
In essence, the applicant arrived in Australia in 1997 on a business visa and applied for protection shortly after his arrival. At that time, the applicant held a Chinese passport. His application for protection was refused and he departed Australia on 10 April 2001. The applicant then returned to Australia in March 2002 on a South Korean passport. Again, shortly after his arrival, the applicant applied for protection. For this application, the applicant relied on his South Korean passport and claimed to fear harm from the Korean Government because of workplace issues he had experienced. On 16 August 2002, the Delegate refused the applicant’s application for a protection visa, having found the applicant to be a South Korean citizen.
The first respondent conceded that the applicant was not properly notified of the Delegate’s decision dated 16 August 2002. Upon the applicant being detained by the Department in 2014, the applicant was re-notified of the Delegate’s decision under cover of letter dated 9 July 2014. That letter informed the applicant that he could apply for review of the Delegate’s decision.
On 23 July 2014, the applicant lodged an application with the Tribunal for review of the Delegate’s decision. On 30 April 2015, the applicant appeared before the Tribunal to give evidence and present arguments in relation to the whether he was entitled to protection either under s.36(2)(a) or s.36(2)(aa) of the Act.
The Tribunal first considered the applicant’s nationality. The Tribunal noted that the applicant had provided the Tribunal a Chinese passport issued to the applicant in Sydney in his Chinese name. The Tribunal also noted that the Department’s records confirmed that the applicant had been linked under both his Chinese name and his South Korean name.
The Tribunal found the applicant to be a citizen of China. The Tribunal found that the applicant had travelled to Australia in 2002 on a false South Korean passport in a different name. Accordingly, the Tribunal found that the applicant was not a citizen of South Korea.
The Tribunal noted that the applicant had not made any claims to fear harm in China previously. In this regard, the Tribunal noted that the applicant’s protection visa application in 2002 was based on his claims to fear harm in South Korea. The Tribunal noted that the applicant first raised his claims to fear harm in China at the hearing before it on 30 April 2015. The Tribunal noted that this was some 13 years after the applicant’s initial arrival in Australia on a false passport.
The Tribunal found that there was no evidence before it to indicate that the applicant had previously made claims to fear harm in China. The Tribunal noted that, when asked what harm he feared in China, the applicant said that he applied for protection when he first arrived in Australia in 1998 because he had worked as a manager in a company in China which had become bankrupt. The Tribunal also noted the applicant’s evidence that he stayed in Australia after his application for a protection visa was refused because he wanted to work. The Tribunal further noted the applicant’s evidence that he was later detected and detained by the Department, and after a short time in Villawood Immigration Detention Centre, he decided to return to China in 2001.
The applicant told the Tribunal that, upon his return to China, he was questioned by the authorities regarding his protection visa application in Australia. The applicant said that he was questioned three or four times, but was eventually allowed to return home. The applicant also stated that he was told by the authorities that he should report to the police and undergo re-education and training. The applicant told the Tribunal that, instead of going to the police station, he contacted a friend who helped him to obtain a South Korean passport. The applicant said that he used the South Korean passport to come back to Australia in 2002, whereupon he made his second application for a protection visa.
The applicant told the Tribunal that if he was to return to China, he would be questioned by the authorities and that he would not be able to withstand the conditions in prison. The Tribunal put to the applicant that had the authorities been interested in him when he first returned to China in 2001, he would have been detained rather than merely questioned and then allowed to go home. The Tribunal also put to the applicant that the fact that the applicant had remained in Australia for some 13 years without making any claim to fear harm in China suggested that his fear of harm in China was not genuine.
The Tribunal’s decision record discloses that the Tribunal considered the applicant’s claims to fear harm in China, however, ultimately found that those claims were not credible. The Tribunal found that, had the Chinese authorities been interested in the applicant, he would have been detained and arrested rather than simply questioned when he returned to China in 2001. The Tribunal did not accept that the applicant was of any ongoing interest to the Chinese authorities when he returned to China in 2001 or when he departed again in 2002, or that he had been required to report to the authorities whilst in China, or that he had any adverse political profile.
The Tribunal also put to the applicant independent country information indicating that the Chinese authorities were aware that many Chinese citizens leave China and apply for protection in other countries due to economic reasons. The Tribunal put to the applicant that independent country information did not suggest that such persons were harmed upon their return to China. The Tribunal’s decision record indicates that the Tribunal referred with specificity to independent country information that indicated that the Chinese authorities take a pragmatic view of Chinese nationals applying for protection overseas, rather than viewing it as a sign of disloyalty.
In any event, the Tribunal did not accept that the Chinese authorities might be aware that the applicant had applied for protection in Australia. The Tribunal found that the applicant had been granted a valid Chinese passport in 2013, and would be returning to China on that passport. The Tribunal was not satisfied that the applicant would have any difficulties returning to China on that passport.
Further, the Tribunal was not satisfied that there was any other reason as to why the applicant would not be not be able to return to China, where according to his own evidence, his wife and two daughters resided.
The Tribunal also noted the applicant’s evidence that it would be shameful for him to return to China as he would have to present himself to the police, and that this would also cause his family to be ashamed. The Tribunal accepted that the applicant may feel ashamed at having to return to China after an unsuccessful protection visa application.
Overall, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm for any Convention reason if he returned to China.
The Tribunal then considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act. However, for the same reasons as referred to above, the Tribunal found that there were not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, China, there was a real risk that the applicant would suffer significant harm. Specifically, the Tribunal found that there was not a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhumane treatment or punishment, or that he would be subjected to degrading treatment or punishment. Accordingly, the Tribunal affirmed the decision under review.
A fair reading of the Tribunal’s decision record makes clear from the summary referred to above that the Tribunal understood the applicant’s claims to fear harm in China and that it considered the applicant’s evidence provided in support of those claims.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
In relation to the applicant’s complaints about the brevity of questions asked by the Tribunal, the transcript of the Tribunal hearing discloses that the applicant was told by the Tribunal that the hearing was his opportunity to tell the Tribunal about the matters that he thought were relevant. The transcript of the Tribunal hearing also makes clear that the Tribunal explored with the applicant the history of his various passports. The Tribunal asked the applicant open ended questions about what had happened to him when he returned to China in 2001 and what he claimed to fear if he was to return to China again.
Before the Tribunal concluded the hearing, the applicant was invited to tell the Tribunal anything further that he wished to say. In the circumstances, there is nothing on the face of the transcript of the Tribunal hearing to suggest that the applicant was not given a meaningful opportunity to say whatever he wished in support of his claims.
Further, the Tribunal’s decision record does not suggest that the applicant’s claims were not properly considered by the Tribunal.
In the circumstances, Ground 1 of the applicant’s Amended Application is not made out.

Ground 2

Ground 2 appears to be a complaint about the Tribunal’s consideration of the applicant’s entitlement to complementary protection. The Tribunal relied on its findings in respect of its consideration of the applicant’s Convention based claims in considering whether the applicant met the complementary protection criterion. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
It is well established that it is acceptable for a tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).
In the circumstances, Ground 2 of the applicant’s Amended Application is not made out.

Validity of the application

For the sake of completeness, I refer to, and accept in their entirety, the first respondent’s written submissions on the issue of the validity of the applicant’s protection visa application made on 8 May 2002 and the applicant’s subsequent re-notification of the Delegate’s decision. Those submissions are as follows:
“Validity of protection visa application of 8 May 2002
25. The Minister submits that the applicant's protection visa application made on 8 May 2002 was valid, despite it being the second protection visa application made by the applicant.
26. At the time the applicant lodged his protection visa application of 8 May 2002, section 48A of the Act was in the following terms:
(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas has been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non-citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
27. Accordingly, subject to the power in section 48B being exercised, section 48A operated to prevent a non-citizen from making more than one valid protection visa application whilst they remained in the migration zone.
28. The applicant was not removed from Australia pursuant to section 198 of the Act when he departed Australia in 2001. Instead, he was released from detention on a bond of $25,000 and then voluntarily departed (under monitoring) on 10 April 2001. He subsequently returned to Australia in March 2002. Therefore, the applicant was not continuously in the migration zone as contemplated by section 48A(1A) of the Act when he made the protection visa application on 8 May 2002 and was therefore not prevented by section 48A from lodging a second protection visa application upon his return to Australia in 2002.
Re-notification of delegate's decision
29. As indicated at paragraph 10 above, after the applicant was detained in 2014 the Department formed the view that the applicant had not been correctly notified by the delegate's decision to refuse his protection visa application.
30. The applicant was re-notified of the delegate's decision by letter dated 9 July 2014, almost 12 years later. The applicant was informed that his review rights had not been affected, as the time for seeking review of that decision would not commence until that valid notification was made. The applicant availed himself of the opportunity to seek review of the delegate's decision before the Tribunal, and was afforded the opportunity to present his (new) claims and evidence at the Tribunal hearing.
31. In these circumstances, the Minister submits that any defect in the initial notification of the delegate's decision did not affect the role of the Tribunal in reviewing the decision under review. In this case, the Minister submits that the Tribunal complied with its procedural obligations set out in the Act, and no allegations to the contrary have been made by the applicant. The Minister therefore submits that any defect with the process initially followed by the delegate, to the extent that it affected the validity of the initial notification of the decision, was cured by the subsequent re-notification provided to the applicant and the Tribunal validly reviewing the decision under review (Yilmaz v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 100 FCR 495 per Gyles J at [92]–[96]; SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53 per Bennett J at [25]).”

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard and which it discussed with the applicant.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 20 July 2016