ATO17 v Minister for Immigration

[2017] FCCA 2542

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATO17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2542

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the adverse findings in relation to the applicant were open – no obligation enlivened under s 424A – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: ATO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 528 of 2017

Judgment of: Judge Street

Hearing date: 24 October 2017

Date of Last Submission: 24 October 2017

Delivered at: Sydney

Delivered on: 24 October 2017

REPRESENTATION

Solicitors for the Applicant: Mr T Rurner
Turner Coulson Immigration Lawyers

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 10 October 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 528 of 2017

ATO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 January 2017 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. The applicant arrived in Australia on 29 March 2008 having applied for a Student visa on 12 February 2008. The applicant arrived on a Student (Subclass 572) visa which was valid until 14 May 2010. The applicant departed Australia on 12 October 2009 returning back to China and then came back to Australia on 3 November 2009. The applicant applied for a second TU 572 visa on 22 March 2010 which was valid until 4 May 2011. The applicant then remained unlawfully in Australia from 20 May 2011 until the making of this application for protection on 21 May 2014. 

3. The applicant’s claims for protection largely centred on his association with his father who allegedly came to the attention of the authorities due to his opposition of the alleged corrupt government. The applicant alleged in 1996 his family home was broken into by locals who intended to arrest his father but they could not locate his father and they took his mother instead and assaulted her. The applicant alleged his father tried on various occasions to publicise and object to government corruption and that this brought him to the attention of officials who punished him by charging him, heavily taxing him and being violent towards him.  In 2005 the applicant alleged his father protested the mining activities of a local company and was beaten by underworld figures and then charged with assault himself.

4. The applicant alleged that he became involved with some of his father’s activities in opposing the mining company and began to receive threats himself. The applicant alleged that his father feared for his safety and decided to send him to a foreign country to escape the Chinese authorities. It was in those circumstances in 2008 that the applicant departed China for Australia, having unsuccessfully applied twice to study in the United Kingdom in 2006.

5. In 2012, the applicant’s father was involved in a road accident which the applicant believed was an assassination attempt. In 2014, the applicant’s father was detained for more than a month for illegal trading of land.

6. The applicant also raised at the hearing before the Tribunal an additional claim based on sensitive documents which the applicant claimed related to the government’s illegal activities and the detention of the applicant’s father in 2012. The applicant claimed his brother-in-law had been assassinated by the Chinese government to stop him bringing the sensitive documents to the applicant in Australia. In support of these claims the applicant provided documents which indicated that his brother-in-law and sister were both granted visas to travel to Australia in December 2015 and another document which indicated that his brother died from a tumour.

7. The delegate rejected the applicant’s reasons for failing to apply for protection earlier on the grounds of not being credible. The delegate found the claim that the applicant made in 2014 that he applied in May 2014 because his father was detained had been fabricated for the sole purpose of providing a reason for the date of his application.  The delegate found the applicant applied for protection solely as a means to remain in Australia for reasons unrelated to fear of harm. The delegate found the applicant had fabricated his claims for the purpose of supporting his protection visa application. The delegate on 20 April 2015 found the applicant failed to meet the criteria for the grant of the visa. 

The Tribunal’s decision

1. The applicant was invited by letter dated 1 November 2016 to attend a hearing on 13 January 2017. The applicant appeared on that date to give evidence and present arguments. A record of the transcript has been tendered of that hearing. The Tribunal in its reasons identified the background to the application for review and identified the relevant law. The Tribunal made reference to the applicant’s migration history and identified the applicant’s claims and evidence as well as the outcome of the delegate’s decision. The Tribunal then referred to the review application and what occurred at the hearing. 

2. The Tribunal raised with the applicant in the course of that hearing that his ability to continue living in Fujian up until 2008 without any difficulty apart from a threat made to his father and being refused entry to the army suggested that there may not now, or in the reasonably foreseeable future, be a real chance or risk of the applicant suffering harm. 

3. The Tribunal also raised with the applicant the information in his passport indicating that he returned to China in 2009 which suggested that he was not fearful for his safety at that time. The applicant told the Tribunal he returned to China in order to attend his sister’s wedding.  The applicant told the Tribunal that he did not become fearful for his safety until after 2014.

4. In the course of the hearing, the Tribunal raised with the applicant that the claim that he had threatened to reveal sensitive government information was significant insofar as the applicant suggested this was the trigger for his protection visa application and that up to that point he had not thought that he would be harmed as a consequence of his father’s activities. Despite the significance of this claim, the Tribunal observed the applicant had not mentioned it in his written statement or during the departmental interview. In response, the applicant suggested that he had not realised how significant this was until his brother-in-law died and that he never thought his brother-in-law would pay with his life.

5. The Tribunal was prepared to accept that the applicant’s father has a history of protesting or making complaints about local social, environmental and political issues. The Tribunal was prepared to accept that the applicant’s father was involved with making complaints about a particular quarry as well as the alleged corrupt behaviour of town officials in around 2005 and 2006. The Tribunal was prepared to accept that the applicant’s father spoke to the media with regard to his concerns about the quarry. The Tribunal was also prepared to accept the applicant took some interest in his father’s activities and may have played some role in helping him to compile information about the quarry, such as taking photographs and that this information was later used in at least one newspaper article. The Tribunal however, was not satisfied that the applicant’s other claims were credible.

6. Although the applicant maintained that he had received threats which caused his father to fear for his safety and that the applicant’s father to fear for his safety and that the applicant’s father made arrangements for him to leave China, the Tribunal observed that the applicant’s oral evidence suggested that he was not particularly concerned for his safety until around 2014 when he lodged the present application. The Tribunal noted that at the hearing the applicant claimed his father, in fact, only received one threat which was mentioned by the applicant.  The Tribunal noted the only other difficulty the applicant claimed to have experienced whilst in China at the hearing was being refused entry into the army. The Tribunal found the mere fact of the applicant wishing to enlist in the army difficult to reconcile with his claim to fear harm from the Chinese authorities. 

7. The Tribunal observed the applicant remained living in the Fujian province for another two to three years following the media report on the quarry and was able to complete his university studies and find employment. The Tribunal identified the applicant’s return to China in order to attend his sister’s wedding and raised this with the applicant as suggesting the applicant was not concerned about his safety at that time. The applicant’s response at the hearing, agreed with that proposition.

8. The Tribunal made reference to the applicant commencing and completing his study in Australia and it was not for almost six years after residing unlawfully in the community for approximately three years that he made the application for protection. The Tribunal also referred to a number of claims by the applicant as a consequence of his and his family’s political activities following his arrival in Australia which the Tribunal found far-fetched or fanciful. The Tribunal found the suggestion that the car accident his parents were involved in was an assassination attempt to be implausible. The Tribunal found the alleged assassination of the brother-in-law to be implausible

9. The Tribunal found the applicant’s evidence as to the nature of the sensitive documents in his brother-in-law’s possession to be vague and unconvincing. The Tribunal found the applicant unable to provide a persuasive explanation as to why the brother-in-law would not transmit the documents electronically or by post. The Tribunal found the applicant’s claims regarding the arrest of his father in 2011 and 2014 were not supported by documentary evidence. The Tribunal referred to the applicant’s father being arrested and briefly detained in 2011 and that the documents before the Tribunal suggested that this was owing to an altercation between the applicant’s father and another person engaged in road widening work. The Tribunal noted the applicant had no documentary evidence to support his claim that his father was arrested and detained for more than one month in 2014. The Tribunal found the applicant’s evidence regarding the circumstances in which his father was released in 2014 to be implausible. The Tribunal found the applicant’s evidence in relation to his father’s employment circumstances to be evasive. 

10. The cumulative effect of the deficiencies in the applicant’s evidence identified by the Tribunal gave rise to the Tribunal not being satisfied that the applicant had been truthful or credible.  The Tribunal was not satisfied the applicant’s father was persecuted by the Chinese government, violently beaten by underworld figures, or arrested in connection with his political activities. The Tribunal was not satisfied the applicant’s mother and grandfather were arrested or assaulted. The Tribunal was not satisfied the applicant was denied entry into the army on false grounds owing to his father’s political activities. The Tribunal was not satisfied the applicant’s name was placed on a revenge list or that a genuine threat to the applicant’s life was made to his father. The Tribunal was not satisfied at the time of his departure from China in 2008 and his return in October 2009 the applicant held any concerns for his safety or wellbeing in that country.

11. The Tribunal was not satisfied the Chinese authorities planned to kill the applicant’s father as he was in possession of sensitive materials in 2012. The Tribunal was not satisfied the applicant’s father was arrested in 2014 and charged with illegal trading of national land. The Tribunal was not satisfied the applicant’s father was detained and tortured for more than one month. The Tribunal was not satisfied the applicant’s brother in law was in possession of sensitive documents or that he was assassinated. The Tribunal was not satisfied that documents were stolen during a break in at the applicant’s brother in law’s home. The Tribunal was not satisfied the applicant is in possession of any sensitive documents or that he has threatened to make such documents public.  The Tribunal was not satisfied that the applicant’s phone calls have been monitored. The Tribunal was not satisfied the applicant’s father is now, or has ever been, in hiding.

12. The Tribunal then identified having considered the applicant’s situation should he return to China now or in the reasonably foreseeable future. The Tribunal observed it is prepared to accept that the Chinese authorities have been known to treat people they perceive to be a threat in a brutal manner. The Tribunal is not satisfied, however, that there is a real chance or a real risk of the applicant being treated in this way. The Tribunal made reference to the father’s low-level political activities and was not satisfied that the Chinese authorities, corrupt officials or any underworld figures have shown any interest in harming the applicant in the past. The Tribunal was not satisfied that anything has occurred in the eight years since the applicant’s departure from China which would cause the Chinese authorities, corrupt officials or underworld figures to have any interest in the applicant now or in the reasonably foreseeable future.

13. The Tribunal found having considered the applicant’s claims individually and cumulatively that the Tribunal was not satisfied the applicant had a well-founded fear of persecution. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations and found that the applicant did not satisfy the criteria under s 36(2)(a) of that Act. 

14. The Tribunal then made reference to a further finding that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk the applicant will suffer significant harm. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The Tribunal's findings and reasons were unreasonable

   PARTICULARS

   a. The Tribunal's reasons and findings lacked an evident and intelligible justification.

   b. The Tribunal's reasons and findings were arbitrary or capricious or abandoned common sense.

   2. The Tribunal failed to carry out its statutory duty

   PARTICULARS

   a.

   i. The Tribunal relied upon the interview that the Applicant had with the Department of Immigration and Border Protection.

   ii. The Tribunal failed to comply with the Migration Act 195 8 s.424A.

   3. The Tribunal failed to consider all integers of the Applicants claim

   PARTICULARS

   a. The Tribunal identified the Applicants activities in China but failed to consider what would happen if he returned to China and resumed those activities.

Ground 1

1. In relation to ground 1, Mr Turner took the Court to paragraph 56, 62, 64, 65 and 67 of the Tribunal’s decision submitting that the findings that the Tribunal referred to in those paragraphs were unreasonable and lacked an evident and intelligible justification. None of the adverse findings identified by the Tribunal were illogical or unreasonable. The Tribunal’s reasons are not to be read with a keen eye for error and are to be read as a whole. This is a case where there were serious adverse credibility findings made against the applicant and the adverse findings in relation to the applicant were open for the reasons given of the Tribunal. 

2. Mr Turner also submitted that the finding in relation to complementary protection was unreasonable and that the Tribunal had failed to properly conduct its statutory task. It is apparent on a fair reading of the Tribunal’s reasons that the Tribunal took into account its earlier findings in determining whether or not the applicant was the person in respect of whom Australia owed protection obligations on the grounds of complementary protection. That was a legitimate course for the Tribunal to follow. Further, it is apparent from the Tribunal’s reasons that the Tribunal took into account both the real chance and real risk test in assessing the applicant’s claims which involved an assessment of both the refugee claim and the complementary protection claim. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Turner took the Court to paragraph 50 of the Tribunal’s reasons submitted that the reference to what was not included in the applicant’s written statement or during the Departmental interview constituted information enlivening an obligation under s 424A of the Act. The reasoning by the Tribunal in relation to matters of credibility arising from omission and the matters identified are not information enlivening an obligation under s 424A of the Act. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Turner argued that the Tribunal had failed to consider an integer of the applicant’s claim being the proposition that the applicant would continue to engage in activities assisting his father effectively in protests if he was returned to China. No such claim was made on the material before the Tribunal. No such claim fairly arose in the material.

2. Mr Turner took the Court to pages 12, 19, 21, 23, 39 and 43 of the transcript. I do not accept that those parts of the transcript support any such claim as fairly arising on the material before the Tribunal. Further, this is a case where the Tribunal made comprehensive adverse credibility findings in relation to the applicant’s claims as to his father’s alleged political activities and in relation to the applicant’s claims, those adverse findings were open.

3. Insofar as it could be said that there was a claim that the applicant may engage in advancing political activities on return to China, any such claim was subsumed within the adverse findings made by the Tribunal.  No jurisdictional error is made out by ground 3.

4. The amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  1 November 2017