Auz16 v Minister for Home Affairs
[2019] FCA 1991
•12 November 2019
FEDERAL COURT OF AUSTRALIA
AUZ16 v Minister for Home Affairs [2019] FCA 1991
Appeal from: AUZ16 & Ors v Minister for Immigration &Anor [2018] FCCA 593 File number: NSD 481 of 2018 Judge: LOGAN J Date of judgment: 12 November 2019 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision refusing to grant the appellants a protection visa – where the first appellant had a prior unsuccessful application for a protection visa – where the Tribunal considered both refugee and complementary protection claims – where the Tribunal reached certain findings on the basis of assessments of the first appellant’s credibility – whether the Tribunal failed to afford the appellants procedural fairness – whether the Tribunal made a finding without support evidence
PRACTICE AND PROCEDURE – where the third appellant is a child – where the appeal had been commenced with no litigation representative being appointed on her behalf – where separate claims were advanced on her behalf – where no formal application had been made prior to the hearing to appoint a litigation representative – where the first and second appellants orally consented at the hearing to be the third appellant’s litigation representative – whether a litigation representative should be appointed
Legislation: Migration Act 1958 (Cth) ss 36, 48A, 424A, 425 Cases cited: AUZ16 & Ors v Minister for Immigration & Anor [2018] FCCA 593
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
Date of hearing: 12 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Appellants: The appellants appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 481 of 2018 BETWEEN: AUZ16
First Appellant
AVH16
Second Appellant
AVG16
Third Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
12 NOVEMBER 2019
THE COURT ORDERS THAT:
1.No person other than a Judge or member of the Court staff or a party to the proceeding or a party’s legal representative may access exhibit 1 without leave of the Court of a Judge.
2.The consent given orally by each of the first and second appellants, jointly to act as litigation representative for their elder daughter, the third appellant, be sufficient compliance with the Federal Court Rules 2011 (Cth) (the Rules) relating to the appointment of a litigation representative.
3.The first and second appellants’ oral consent be deemed to be an application to be, jointly, the litigation representative for the third appellant.
4.The requirements of the Rules insofar as they would require a written application, a written affidavit, a consent and certificate by the litigation representatives, and the service of each of those on the respondents, be dispensed with.
5.The first and second appellants be appointed jointly as litigation representative for the third appellant.
6.The appointment take effect nunc pro tunc on and from the filing of the notice of appeal on 3 April 2018.
7.The appeal be dismissed.
8.The first and second appellants pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
There are three appellants in this proceeding: the first appellant, his de facto wife and, as it transpires, their elder daughter. Each is a citizen of the People’s Republic of China. Earlier this year, after the commencement of the appeal, the first and second appellants had a further daughter. She is not a party to the appeal. Nor in my view would it be possible to make her a party to the appeal even had such an application been made. That is because the younger daughter, unlike her older sibling, has not made an application under the Migration Act 1958 (Cth) (the Act) for any visa, much less has any application unsuccessfully made to a delegate of the Minister been the subject of in succession an application for review by the Administrative Appeals Tribunal (Tribunal) (or a predecessor Tribunal) or of the Federal Circuit Court judgment (AUZ16 & Ors v Minister for Immigration & Anor [2018] FCCA 593) which is the subject of the present appeal.
It is neither necessary nor for that matter appropriate in determining the present appeal to make any observations at all as to whether the younger daughter may be able, in her own right, to make an application for any particular visa, be it, a protection visa or otherwise under the Act.
On the hearing of the appeal, I noticed that no representation order had hitherto been made in respect of the third appellant. At the hearing, each of the first and second appellants gave an informed consent orally that they jointly be litigation representative for the third appellant. I made orders accordingly.
The male appellant came to Australia as long ago as 28 September 1996. Almost two years after arriving in Australia, he made application under the Act for a protection visa. He had entered Australia using a false passport.
That original application by the male appellant was made as the Tribunal came later, to recite, on the basis that he had been born in and grown up in a labour camp after his parents, say he claimed, had been persecuted during China’s Cultural Revolution. He further claimed he had been involved in pro-democracy activities and that these activities had attracted the attention of authorities in China resulting in his detention. That visa application was refused by a delegate of the Minister on 10 December 1998.
The male appellant then sought the review of that refusal decision by the then Refugee Review Tribunal. On 5 July 1999 for reasons given in writing, that Tribunal affirmed the Minister’s delegate’s decision not to grant the male appellant the visa for which he had applied. The appellant did not attend the Tribunal hearing which preceded the making of the Tribunal’s decision.
Thereafter the male appellant unsuccessfully sought Ministerial intervention in his case. He did not then leave Australia, but instead, remained at large as an unlawful non-citizen. He was located by an officer of the Minister’s department on 28 May 2003. At that time he was granted a Class E Bridging visa in anticipation of his departure from Australia. Again he did not depart but rather remained as an unlawful non-citizen until lodging another protection visa application on 27 March 2014. That application was not successful; again a delegate of the Minister refused the male appellant’s application.
The male appellant sought the review of that decision by the then Refugee Review Tribunal. On this occasion, the visa application embraced not just the male appellant but also his de facto wife, the second appellant, and their then only daughter, the third appellant. The Minister’s delegate’s refusal decision thus also extended to the second and third appellant’s visa applications. The second appellant did not advance separate claims for protection. The third appellant at least on review, was regarded as having in one respect a separate claim, on the basis that she would not be able to secure what is known as hukou registration because of her parentage, and the status her parents would have if returned to China.
At the time when the Tribunal heard and decided the appellants’ review application in respect of the 2014 visa application decision, there was a degree of uncertainty as to the nature and extent of the ability of the Minister’s delegate, and in turn the Tribunal, to consider the male appellant’s second visa application, otherwise than by reference just to what is known as complementary protection criteria, as found in s 36(2)(aa) of the Act. Out of an abundance of caution, the Tribunal assessed the male appellant’s claim by reference both to refugee criteria as found in s 36(2)(a) of the Act, as well as the complementary protection criteria found in s 36(2)(aa). The reason for the uncertainty flowed from a prescription in s 48A of the Act, relating to, or restricting apparently, an ability again to consider protection criteria where a person had previously made an unsuccessful protection visa application. The adult female appellant, the second appellant and the third appellant, the then only daughter, have never made an earlier protection visa application. That in my view provided an additional reason why it was entirely appropriate for the Tribunal to have approached the determination of the review in the way that it did.
As it happened, after the Tribunal decided on 18 March 2016 to affirm the Minister’s delegate’s refusal decision, a Full Court of this Court in Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 decided that in circumstances where there had been a prior unsuccessful protection visa application, a delegate and also a Tribunal on review did not have power to consider a second protection visa application, by reference to the s 36(2)(a) criteria, as well as those in s 36(2)(aa).
In his second protection visa application, the male appellant claimed that authorities in China had a grudge against him, had taken away his land, had cancelled his household registration and that he had felt compelled to leave China illegally. He said that he had found out about cancellation of his household registration when he attempted unsuccessfully to renew his passport at the Chinese consulate. He claimed that he would not be able to re-register for hukou registration if he returned to China. Instead, he said he would be detained in a labour camp for ten months. In his evidence before the Tribunal, he also expressed concerns that if he were unable to obtain his hukou registration on his return, then his infant daughter would be unable to obtain her hukou registration.
The grounds of appeal in respect of the appellants’ challenge to the dismissal of their judicial review application by the Federal Circuit Court on 12 March 2018, in respect of the Tribunal decision are as follows:
1.The primary judge erred in making an order that the Tribunal made no jurisdictional error.
2.The primary judge failed to consider the procedure fairness not fairly afforded in the applicant’s application process.
[sic]
Each of these grounds, with respect, is pleaded at a level of generality which does not provide meaningful content. The Minister quite fairly approached the appeal on the basis that these appeal grounds took up and took issue with the three grounds of review that had been pleaded before the Federal Circuit Court. Those grounds were:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal made a finding without supporting evidence.
3.The Tribunal failed to consider the applicant’s all claims, namely the Tribunal only consider the effect of complementary protection criteria.
[sic]
Appeal ground 2 apparently takes issue with the dismissal of judicial review ground 1. The learned Federal Circuit Court Judge concluded that none of the appellants had been denied procedural fairness. His Honour did so by noting that the Tribunal had, as s 425 of the Act required, invited the applicants to attend hearings which are conducted for the purposes of the review and that the appellants had taken up that offer and were represented on the first of the hearing days by a Migration Agent.
His Honour further noted, and the case is, that the Tribunal had allowed the adult appellants an opportunity to give evidence and present arguments at the hearings relating to the issues arising on the review application. In these circumstances there is no error in the primary judge’s conclusion that there had been observance of procedural fairness requirements in so far as s 425 was concerned. His Honour also addressed s 424A concluding that there had been no identification of any information that would attract an obligation under that section. That was not the subject of any separate submission today. I therefore do not propose further to address that.
Suffice it to say the complaint that came to be made in relation to the hearing was that the Tribunal member concerned had asked questions but not conducted an investigation to the end of corroborating the claim made by the male appellant, upon which so much depended, so as to corroborate the account he gave. As was correctly submitted on behalf of the Minister, the Tribunal’s core function was that of review not enquiry of its own motion: see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. That case also establishes that in singular circumstances the Tribunal can come under an obligation to exercise its power under s 424 of the Act to get information of its own motion.
Neither the first nor the second appellant in their submissions highlighted particular circumstances other than a general wish that the Tribunal had done so which they submitted gave rise to an obligation to conduct enquiries. Nor is it readily apparent from the circumstances of the claim that there was any obvious enquiry readily answered that the Tribunal might have conducted either at the time of the hearing, beforehand, or afterwards. Inferentially, to have conducted an enquiry in respect of events in China prior to 1996 entailing enquiry as to the male appellant’s participation in dissident activities, incarceration in a labour camp, and forfeiture of a farm would have been by no means straight forward. In the ordinary course of events it is for applicants for review to bring forward to the Tribunal such material as they can, supporting the claims that they make.
The second ground of review in the Federal Circuit Court alleged the making of findings without supporting evidence by the Tribunal. I took this to be what the appellants meant in their first ground of review in relation to the general allegation of jurisdictional error. That is because in his submissions, which his de facto wife adopted, the male appellant expressed particular disagreement with the rejection by the Tribunal of the account which he gave of his experiences in China.
It was quite obvious from the male appellant’s demeanour that he genuinely disagreed with the Tribunal’s conclusions about his claim. Those conclusions were very much based, as [79] of the Tribunal’s reasons reveals, on inconsistencies in various accounts which the appellant had given over time. The Tribunal is not obliged to accept uncritically an account which an applicant for review gives as to the basis of his or her claim for a visa. That is not to say that findings based on credibility are immune from challenge, but if they are expressed logically, and rationally, and do not entail oppressive questioning, and none of those features are present in this case, it is incumbent on courts conducting judicial review or appeals to recognise that findings as to credit are par excellence for the administrative decision maker, here, the Tribunal.
In this instance the Tribunal addressed both the protection visa criteria and the complimentary protection criteria. It was open to the Tribunal for the reasons given not to be satisfied that the protection visa criteria were met in respect of any of the appellants. It was also open to the Tribunal on the basis of the information before it to conclude that no complementary protection visa obligation arose, particularly having regard to its credibility findings and to country information as to the likelihood of securing on return hukou registration.
The long and the short of it therefore is that, bitter though the outcome doubtless is for the male appellant in terms of the Tribunal’s decision, that decision was not one attended with jurisdictional error. None of the appellants can establish error on the part of the Federal Circuit Court in dismissing their judicial review application. It is just one of those hard decisions which it falls to the Tribunal to make from time to time as to whether to accept or not accept a visa application’s factual foundation as claimed. It would exceed the role of the judicial branch of government other than not to recognise that.
What necessarily follows is that the appeal must be dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 26 November 2019
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