AUZ16 v Minister for Immigration
[2018] FCCA 593
•12 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUZ16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 593 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicant claiming a fear of harm in China because of a land dispute – applicant not believed – second applicant making no claims – third applicant a child who was not at significant risk of harm – whether the Tribunal afforded the applicants procedural fairness, made a finding without evidence or wrongly confined itself to the complementary protection criterion considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 424AA, 424A, 425, 438 |
| Cases cited: AMA15 v Minister for Immigration [2015] FCA 1424 AVO15 v Minister for Immigration [2017] FCA 566 Minister for Immigration v Chamnam You [2008] FCA 241 Minister for Immigration v SZVCH (2016) 244 FCR 366 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| First Applicant: | AUZ16 |
| Second Applicant: | AVG16 |
| Third Applicant: | AVH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 861 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application lodged on 11 April 2016 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 861 of 2016
| AUZ16 |
First Applicant
| AVG16 |
Second Applicant
| AVH16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 March 2006. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 5 March 2018.
The applicants are citizens of China. The first applicant (the applicant) was born in China in November 1970[1] and is the de facto spouse of the second applicant.[2] The third applicant is their daughter, who was born in Australia in October 2013.[3] The applicant first arrived in Australia in 1996 and, in August 1998, lodged an application for a protection visa.[4] On 10 December 1998, a delegate of the Minister refused to grant that application.[5] The (then) Refugee Review Tribunal affirmed the decision on 5 July 1999.[6] On 27 March 2014, the applicant lodged the application the subject of this judicial review application.[7] The second and third applicants were included as members of the applicant’s family unit.[8]
[1] Court Book (CB) 1
[2] CB 15
[3] CB 15
[4] see Supplementary Court Book (SCB) 1-29
[5] SCB 30-35
[6] SCB 36-44
[7] CB 1-35
[8] CB 15
In support of his application for the visa, the applicant raised the following matters:[9]
a)the authorities took his farmland without providing compensation;[10]
b)the authorities cancelled his Hokou registration. He will not be able to re-register and will be denied access to social benefits;[11] and
c)the third applicant might not be able to obtain a Hokou registration, because the applicant’s registration has been cancelled.[12]
[9] CB 5-8
[10] CB 6
[11] CB 6-7
[12] CB 98 [7]
On 8 October 2014, the delegate refused to grant the applicants the visa.[13]
[13] CB 36-54
On 28 October 2014, the applicants applied to the Tribunal for review of the delegate’s decision.[14] On 19 November 2015, the applicants were invited to attend a hearing before the Tribunal, to be held on 17 December 2015.[15] That hearing took place, as scheduled.[16] On 4 February 2016, the applicants were invited to attend a further hearing before the Tribunal, to be held on 2 March 2016.[17] That hearing also took place, as scheduled.[18]
[14] CB 55-57
[15] CB 63-64
[16] CB 69-72
[17] CB 82-83
[18] CB 89-92
On 18 March 2016, the Tribunal affirmed the decision under review.[19]
[19] CB 96-118
The Tribunal’s decision
The Tribunal observed that, because the applicant had previously made an application for protection that had been refused, it was to consider the applicant’s claims only against the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[20] However, because an appeal in SZVCH v Minister for Immigration & Anor[21] was (then) pending before the Federal Court, the Tribunal, “out of an abundance of caution”, made alternative findings against the refugee criteria in s.36(2)(a) of the Migration Act.[22] The Tribunal observed that the second applicant did not make any claims herself.[23] It also observed that a claim had been made for the first time on behalf of the third applicant,[24] which would be considered against the refugee and complimentary protection criteria.[25]
[20] CB 98-99 [12]
[21] [2015] FCCA 2950; judgment was handed down by the Full Court of the Federal Court in that matter on 14 September 2016 (ie. after the Tribunal’s decision): see Minister for Immigration v SZVCH (2016) 244 FCR 366.
[22] CB 99 [12]
[23] CB 97-98 [5]-[6]
[24] see [3(c)], above
[25] CB 99 [13]; 101 [29]
The Tribunal set out the claims made by the applicant in his first protection application,[26] the present protection application,[27] and the information provided by the applicant to the delegate.[28] The Tribunal also summarised the hearings before it, including matters raised by the Tribunal and the applicant’s responses.[29]
[26] CB 100 [22]
[27] CB 100-101 [23]-[25]
[28] CB 101 [26]
[29] CB 101-109 [28]-[71]
The Tribunal found that the applicant had given “vastly different” and “contradictory” accounts of what had happened to him before he left China, and considered that the “inconsistencies in [the applicant’s] evidence are so significant that they cannot be explained by the fact [that the applicant] was nervous or by the passage of time or by a combination of these factors”.[30] The Tribunal set out its concerns about the applicant’s evidence, which related to events that allegedly occurred while he lived in China.[31]
[30] CB 110 [75]; 111 [83]
[31] CB 110-111 [78]-[83]
The Tribunal did not accept that the applicant’s claims of past harm were credible.[32] Accordingly, the Tribunal did not accept that the applicant had ever been detained in a labour camp or that he left China for that reason; that he had been targeted by local officials; that his family’s land had been confiscated or that he fled China for that reason; or that he fled China on an illegally obtained passport.[33] The Tribunal also did not accept that the applicant was of adverse interest to the authorities, or any person or group, at the time he left China, or would be of adverse interest to anyone if he returned to China now.[34]
[32] CB 110 [77]; 111 [83]
[33] CB 112 [83]-[84]; 114 [94]
[34] CB 112 [84]; 114 [94]
On the basis of country information, the Tribunal was prepared to accept the applicant’s claim that his Hokou registration had been cancelled but, given its earlier findings, it did not accept that his Hokou registration had been cancelled because the applicant was of adverse interest to the authorities.[35] Also on the basis of country information, the Tribunal found that the applicant could have his Hokou registration reinstated on return to China.[36] The Tribunal also did not accept that there was a real chance the applicant would suffer serious or significant harm as a consequence of his Hokou registration having previously been cancelled.[37] The Tribunal also did not accept that the applicant would be unable to find work for himself and support his family on return to China, and was not satisfied that any difficulties the applicant might encounter on returning to China would amount to significant harm.[38]
[35] CB 113 [88]
[36] CB 113 [88]; [90]; 114 [95]
[37] CB 113 [90]
[38] CB 114 [93]
The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm if he returned to China.[39] Assessing the applicant’s claims against the refugees criteria in s.36(2)(a) of the Migration Act,[40] the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm on return to China.[41]
[39] CB 114 [96]
[40] see [7], above
[41] CB 115 [97]
In relation to the third applicant, the Tribunal referred to the (first) applicant’s claim that the third applicant would not be able to obtain a Hokou registration (because the (first) applicant could not reinstate his). The Tribunal did not accept the claim made about the third applicant, because the Tribunal considered that the applicant would be able to reinstate his own Hokou registration, and this would allow the third applicant to also obtain registration.[42] The Tribunal also found that, although the third applicant had been born in breach of Chinese family planning regulations, there was not a real chance that she would be unable to obtain a Hokou registration in Fujian province.[43] Such registration could occur before any social compensation fee was required to be paid, and her parents would be able to pay any social compensation fee imposed on them in instalments.[44] Accordingly, the Tribunal did not accept that the third applicant would suffer discrimination, be denied access to services or an education, or suffer harm, because she could not obtain registration.[45] The Tribunal thus was not satisfied that there was a real chance or risk that the third applicant would suffer any serious or significant harm on return to China.[46]
[42] CB 115 [99]
[43] CB 115 [99]; 118 [108]
[44] CB 118 [108]
[45] CB 118 [109]
[46] CB 118 [109]
The Tribunal was not satisfied that any of the applicants satisfied the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act. Accordingly, the Tribunal affirmed the delegate’s decision.[47]
[47] CB 118 [110]
The present proceedings
These proceedings began with a show cause application lodged on 11 April 2016. The applicants continue to rely upon that application. There are three grounds in it:
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.
(errors in original)
The application is supported by a short affidavit made by the applicant, which I received.
I also have before me as evidence the court book filed on 9 June 2016 and a supplementary court book filed on 29 July 2016.
I also received the affidavit of Louise Buchanan made on 21 September 2017, to which is annexed a certificate purportedly issued under s.438 of the Migration Act. Exhibited to that affidavit in a sealed envelope is a bundle of documents purportedly covered by the certificate. The documents were examined during the course of oral argument.
I had made procedural orders deferring a hearing in this matter until after proceedings in the Federal Court concerning the legal implications of non-disclosure certificates in Tribunal proceedings had been dealt with.
Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar. I invited oral submissions from the applicant today on the issues. He asserts that the Tribunal hearing was unfair. He asserted, first, that he was not shown significant documents until the Tribunal hearing. The only record of what occurred at the Tribunal hearing is that appearing in the court book and there is no mention in that record of any disclosure by the Tribunal pursuant to s.424AA or, indeed, more generally.
The applicant also asserts that the Tribunal accused him of using fabricated documents. Again, there is no support for that proposition in the Tribunal decision. The only document of any significance which was fabricated was the Taiwanese passport the applicant used to travel to Australia. That was dealt with in the earlier decision of the delegate.
The second and third grounds in the application lack substance. The Tribunal does not require any rebutting evidence in order to dispose of an application on the basis of adverse credibility conclusions. Further, the Tribunal was correct to find that it could only deal with the complementary protection criteria in the review before it. In any event, out of an abundance of caution, the Tribunal did also deal with the Refugee Convention criteria.
As to the documents purportedly covered by the non-disclosure certificate, it is apparent that these relate to efforts made by the Minister’s Department to locate the applicant while he was living in the community without a valid visa. The efforts were made during the period 2006 to 2008. I see nothing whatsoever in those documents that could have had any bearing on the decision of the Tribunal in issue. The documents might hypothetically have had some bearing on a decision to grant or refuse a bridging visa, but by the time the applicant’s second protection visa application came before the Tribunal, the applicant held a bridging visa.
In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced and the issue of the non-disclosure certificate.
Ground 1
This ground alleges that the Tribunal “failed to afford procedural fairness”. No denial of procedural fairness is apparent from the available material.
The Tribunal complied with s.425 of the Migration Act. In accordance with s.425, the Tribunal invited the applicants to attend two hearings before it.[48] The applicants attended each hearing, and were represented by a migration agent at the first.[49] Moreover, no failure by the Tribunal to allow the applicants an opportunity to give evidence and present argument relating to the issues arising in relation to the review is apparent.[50] There was no new issue arising on the review upon which the applicants were not given an opportunity to give evidence and present arguments.
[48] CB 63-64 and 82-83, respectively
[49] CB 69
[50] cf. SZBEL v Minister for Immigration (2006) 228 CLR 152
Further, there is no basis to conclude that the Tribunal failed to comply with s.424A of the Migration Act. The applicants do not identify any “information”[51] that would attract an obligation under s.424A(1), and none is apparent. Also, the applicants provided a copy of the delegate’s decision to the Tribunal,[52] such that any “information” that might have been contained in the delegate’s decision (which, among other things, discussed the claims made by the applicant in his first protection application) was not the subject of any obligation under s.424A(1).[53]
[51] as to which, see SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]
[52] CB 57
[53] see s.424A(3)(b); Minister for Immigration v Chamnam You [2008] FCA 241 at [11], [16], [27]
Ground 2
This ground alleges that the Tribunal “made a finding without supporting evidence”. No particulars or submissions in relation to the ground were provided and the finding said to be made “without supporting evidence” is not identified. Accordingly, the ground cannot succeed. In any event, none of the Tribunal’s findings or conclusions appear to have been reached without “evidence”, or were otherwise illogical or irrationally made.
Ground 3
This ground alleges that the Tribunal erred because it “only consider[ed] the effect of complementary protection criteria”. However, this ground proceeds on a misreading of the Tribunal’s decision. While, as explained above, the Tribunal found that it was only required to consider the first and second applicants’ claims against the complementary protection criteria in s.36(2)(aa) of the Migration Act, it did (contrary to the allegation in this ground), “out of an abundance of caution” also consider those claims against the refugees convention criteria in s.36(2)(a) of the Migration Act. That was because, at the time of the Tribunal’s decision, SZVCH was on appeal but had not yet been decided by the Federal Court.[54] Accordingly, this ground cannot succeed.
[54] see CB 99 [12]
In any event, the Tribunal was correct to find[55] that it was only obliged to consider the criterion in s.36(2)(aa) of the Migration Act (ie. the complementary protection criterion). As the Tribunal observed,[56] the applicant had applied for protection in August 1998. That application was considered by a delegate of the Minister against the Refugee Convention criteria (ie. s.36(2)(a) of the Migration Act), and was rejected. The (then) Refugee Review Tribunal subsequently affirmed that decision.[57] In these circumstances, the Tribunal was only required to assess the applicant’s claims against s.36(2)(aa) of the Migration Act, because of s.48A of the Migration Act.[58] Simply because the delegate made findings in relation to the criteria in both ss.36(2)(a) and 36(2)(aa) did not have the result that the Tribunal was also obliged to consider the criteria in s.36(2)(a).[59] Also, the fact that it did so does not result in jurisdictional error.
[55] at CB 99 [12]
[56] at CB 98-99 [12]
[57] CB 97 [2]; SCB 36-44
[58] see SZGIZ v Minister for Immigration (2013) 212 FCR 235 at [32]-[33], [47] and SZVCH at [21]-[44]
[59] see SZVCH at [43]; AMA15 v Minister for Immigration [2015] FCA 1424 at [42]-[48]
Finally, in relation to the third applicant, the Tribunal considered her claims against both s.36(2)(a) and s.36(2)(aa), as no protection application had previously been made by her.[60]
[60] see CB 99 [13]; 115-118 [99]-[109]
Section 438 certificate
Although not identified by the applicants, the Minister raised the following matter for the Court’s consideration.
On 8 October 2014, a certificate pursuant to s.438 of the Migration Act was issued in relation to certain identified folios contained on the Minister’s Department’s file (the certificate). A copy of the certificate is Annexure LBB-1 to the affidavit of Ms Buchanan (the Affidavit). A copy of the documents referred to in the certificate is contained in Exhibit A to the Affidavit. The Minister made no claim for privilege over the documents.
The Minister conceded that the certificate is not valid, as it refers to the disclosure of the documents covered by the certificate as being contrary to the public interest because the documents “contain information relating to an internal working document and business affairs”. The Minister also conceded that neither the certificate nor the documents covered by it were drawn to the applicants’ attention by the Tribunal. Nevertheless, no jurisdictional error results, for the following reasons.
In this case, the documents covered by the certificate were irrelevant to the applicants’ claims. No practical injustice could have resulted from the documents, or the certificate, not being put to the applicant. Accordingly, no jurisdictional error occurred and, even if some error by the Tribunal did occur (which is not conceded), relief should be refused on a discretionary basis.[61] Also, nothing in the documents could constitute “information” and no obligation under s.424A of the Migration Act arose.
[61] see AVO15 v Minister for Immigration [2017] FCA 566 at [87]-[91]; BEG15 v Minister for Immigration [2017] FCAFC 198 at [30]-[33]; Minister for Immigration v BJN16 [2017] FCAFC 197 at [75]; BZV15 v Minister for Immigration & Anor [2017] FCCA 981 at [49]-[53]
Humanitarian considerations
There are humanitarian considerations in this case. The applicant has lived in Australia for several decades. He came here as a young man, met his current partner and formed a relationship with her here. They have had one child together. While arriving as a young man, the applicant is now approaching middle age. Returning to China now would be a very significant adjustment for him, as well as for the other members of his family.
These are matters that could be considered by the Minister on humanitarian grounds if he were so minded. They are, however, beyond the scope of this proceeding.
Conclusion
I conclude that the applicants have failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $6,000. The applicant was concerned at the amount, but, as I explained to him, the issue for the Court is not the applicant’s capacity to pay, but the reasonableness of the claim. I am satisfied that costs of at least $6,000 have been properly and reasonably incurred on behalf of the Minister when considered on a party and party basis.
I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 March 2018
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