AVC15 v Minister for Immigration
[2018] FCCA 1430
•7 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVC15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1430 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether Tribunal relied on its own interpretation of a submission made by the applicant – no jurisdictional error – question of whether Tribunal’s review miscarried because of a failure by the Tribunal to disclose to the applicant an invalid certificate issued purportedly pursuant to s.438 of the Migration Act 1958 (Cth) stood over pending determination of appeals to the High Court. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 422B, 438 |
| Cases cited: BEG15 v Minister for Immigration and Border Protection & Anor [2018] HCATrans 80 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 |
| Applicant: | AVC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1027 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
This matter be stood over to a date to be fixed after the determination by the High Court of the appeals in CQZ15 v Minister for Immigration and Border Protection (M2/2018) and BEG15 v Minister for Immigration and Border Protection (S6/2018).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1027 of 2016
| AVC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Background to application
The applicant arrived in Australia in March 2011 on a tourist visa. He applied for a Protection visa in May 2011 (first PV application), but a delegate of the Minister refused that application. On 4 January 2012 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision.
In September 2013 the applicant lodged a second application for a Protection visa (second PV application). That application was accepted as valid because of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[1] A delegate of the Minister refused to grant the applicant a Protection visa and, on 20 April 2015, the Tribunal, differently constituted from the Tribunal whose decision is the subject of the application for judicial review before me, affirmed the delegate’s decision. On 2 September 2015 the Tribunal’s decision was quashed by this Court and the matter was remitted to the Tribunal for review.
[1] [2013] FCAFC 71
Claims for Protection
The applicant stated his claims for protection in a statement that formed part of his application for a Protection visa.[2] The applicant there said that in 1998 his father, who was suffering from stomach disease and poor health, heard that practising Falun Gong could cure his diseases without medication and seeing doctors. The applicant’s father began to engage in Falun Gong activities, studied Zhuan Falun by Master Li Hongzhi, listened “to preaches [sic] organized by Falun Gong”, and participated in Falun Gong activities. In September 2000, after Falun Gong had been made an illegal organisation, the applicant’s father was arrested and put in gaol because the applicant’s father was accused of having donated money to Falun Gong protesters and to have provided them with travelling expenses. While in prison the applicant’s father was subjected to physical and verbal abuse.
[2] CB128-131
The applicant further claimed that after he was released the applicant’s father continued to practice Falun Gong. The village committee and the police, however, often came to the applicant’s family home to “snoop here and there, and asked various questions”; and the police again took away the applicant’s father and kept him in custody “whenever it was broadcasted in the CCTV news” that Falun Gong followers were causing troubles in Tiananmen Square. The applicant’s father would not be released “unless my family secretly gived [sic] them money”. On one occasion when the police visited the applicant’s family home one of their number “fiercely pulled” the applicant’s mother’s hair, while another policemen “treated her with punching and kicking, and kicked her in the abdomen”. The applicant’s mother was taken away and was detained in the detention house for one day without food or water. At the end of the day “they called the village Party secretary to pick her up and mercilessly told the secretary off”. After that incident the applicant’s mother was summoned “to the county government to be debriefed and tormented every now and then”.[3]
[3] CB236
Finally, the applicant claimed he was discriminated against at school. Whenever the applicant had an argument with a classmate he was called a “Little Falun Gong bastard”. The applicant’s father decided not to endure this humiliation and decided he and the applicant should escape. The applicant’s father arranged for him and the applicant to be issued with tourist visas for Australia. When seeking to clear customs in China, the applicant’s father was not allowed to proceed.
Before the delegate the applicant said he started to practice Falun Gong during his second year in junior high school. The applicant said his relatives and classmates knew the applicant practised Falun Gong, but he had not been caught practising it.[4] The applicant said that his father was often detained; and that the police came to his home once a month and unless they were paid money the applicant’s father was detained.[5] The applicant also said that he had been arrested once when he was at school because a small booklet his father had made for him had been discovered.[6] The applicant said that he practised Falun Gong twice a week at his home in Australia, but had not joined any Falun Gong groups in Australia.
[4] CB310, [26]
[5] CB310, [27]
[6] CB310, [29]
Before the Tribunal, as presently constituted, the applicant provided a letter from the uncle with whom the applicant resided stating that the applicant has been practising Falun Gong at home on a regular basis and that he occasionally went to the Falun Gong practice site in Auburn, to meetings in Garden Street, Alexandria on Saturday nights, and from time to time to outward activities organised by Falun Gong.[7] The letter further stated that the applicant is aware of Chinese spy networks in Australia and, for that reason, is timid about participating in public activities.[8]
[7] CB315, [63]
[8] CB315, [63]
The applicant also provided a letter from a person who described herself as a senior Falun Gong practitioner in Australia. The letter stated she got to know the applicant at a detention centre in 2013 and they often practised Falun Gong together. She said she could confirm that after their release from detention the applicant continued to practice Falun Gong at his home, and that she has often seen the applicant at the Alexandria practising site.[9]
[9] CB315, [64]
Finally, at the hearing before the Tribunal the applicant provided a number of photographs, several showing the applicant practising Falun Gong at home, two showing the applicant holding a Falun Gong banner, and two showing the applicant practising Falun Gong in a park with several other people.[10] The applicant, through his representative, provided further photographs after the hearing.[11]
[10] CB315, [65]
[11] CB317, [79]
Tribunal’s reasons
The Tribunal did not accept the applicant was a Falun Gong practitioner before he departed China.[12] Nor did it accept the applicant or his father had been detained in China because they practised Falun Gong.[13] The Tribunal found the applicant falsely claimed to be a Falun Gong practitioner, and concocted the claims regarding his and his father’s detention in China to make a case for protection in Australia.[14]
[12] CB321, [103]
[13] CB321, [103]
[14] CB321, [103]
First, the Tribunal found the applicant gave inconsistent and implausible evidence about his practice of Falun Gong in China, and about the problems the applicant claimed he and his family faced because of this.[15] The Tribunal relied on the following findings and matters:
a)According to his evidence the applicant had learned only two of the five key practices which all members are required to learn and practice when the applicant arrived in Australia.[16]
b)In the first PV application the applicant claimed he had been detained, but he failed to mention that in the second PV application.[17] Further, when asked by the delegate whether he had been detained, the applicant initially said he had not been detained, but when the delegate informed the applicant he had previously claimed he had been detained the applicant said he had misunderstood the question.[18]
c)The Tribunal found the applicant gave inconsistent evidence about the occasions on which his father was detained.[19]
[15] CB318, [85]
[16] CB318, [86]
[17] CB318, [87]
[18] CB318, [87]
[19] CB318, [88]
Second, the Tribunal found the applicant gave inconsistent evidence about his practice of Falun Gong in Australia.
a)In the first PV application the applicant said he had only practised Falun Gong at home after he arrived in Australia; in his interview with the delegate in April 2014 the applicant said he practised Falun Gong once with a group in Darling harbour in 2011, but otherwise practised at home; at the hearing before a differently constituted Tribunal in March 2015 the applicant said he attended weekly exercises and study sessions at Auburn Park every Tuesday evening since September 2013; and at the hearing before the Tribunal on 10 February 2016 the applicant repeated what he said to the differently constituted Tribunal in March 2015 except he said he only attended occasionally the exercises and study sessions.[20]
b)In April 2014 the applicant told the delegate he held a Falun Gong banner in the city seven times in the city between 2012 and April 2014, but he told the Tribunal at the hearing of 10 February 2016 that he had put up Falun Gong banners three times, the first occasion being in about December 2015 and the most recent a week before the hearing.[21]
c)At the hearing before the Tribunal on 16 February 2016 the applicant claimed for the first time that he had also attended a Falun Gong group somewhere near Redfern railway station. The Tribunal found the applicant’s evidence about his attending such meetings to be vague and unconvincing.[22]
[20] CB319, [95]
[21] CB319, [96]
[22] CB320, [99]
Third, the Tribunal found that the knowledge of Falun Gong the applicant displayed was not at a level that would be expected of someone who was a committed follower, and who had practised Falun Gong for some nine years.[23]
[23] CB320, [102]
The Tribunal did not accept the applicant practised Falun Gong on a regular basis with any group in Australia, or that he had been involved in public protests in Australia.[24] Although it accepted the applicant attended a limited number of Falun Gong gatherings at some time in Australia, the Tribunal found that “in light of his demonstrated willingness to fabricate claims and his overall lack of credibility”, the applicant attended these gatherings “to provide a basis for a claim for protection in Australia and not because he has a genuine commitment to Falun Gong”.[25] The Tribunal noted that the “leaders of the group” refused to provide the applicant with a letter of support because they did not believe the applicant was serious, and found that that was a strong indication the applicant is not a genuine practitioner.[26] (This part of the Tribunal’s reason appears to be a reference to what the applicant said in answer to a question by the Tribunal as previously constituted why the applicant had not provided a letter of support from other Falun Gong supporters. The applicant said he had asked for a letter, but he had been told he was a young kid and, despite knowing he would appear before the Tribunal, nobody would give him a letter.[27])
[24] CB320, [100]
[25] CB320, [100]
[26] CB320, [100]
[27] CB311, [34]
The Tribunal also did not accept the applicant’s claim that he practised Falun Gong in his home in Australia because he was shy by nature and because he is fearful of being identified by Chinese spies and the future problems that may result from this. The Tribunal found this claim to be at odds with the evidence the applicant gave that he attended Falun Gong meetings and protests on many occasions after September 2013. The Tribunal accepted, however, that the applicant studied Falun Gong exercises and teachings at home after he arrived in Australia using materials downloaded from the Internet; but it found the applicant did that only to provide a basis for his application for protection in Australia.[28]
[28] CB320, [101]
The Tribunal noted that, in concluding the applicant was not a genuine Falun Gong practitioner, it considered the letters and photographs the applicant provided to the Tribunal. The Tribunal said it believed the letters were written at the applicant’s request, and it did not accept they provide an accurate or honest account of the applicant’s commitment to or involvement with the Falun Group. The Tribunal also found that the photographs “were staged by the applicant purely to support his application for refugee status”.[29]
[29] CB320, [102]
The Tribunal also found that the applicant would not practise Falun Gong if he were to return to China; and there was nothing in the evidence before the Tribunal that suggested the Chinese authorities would be aware the applicant practised Falun Gong exercises at home.[30] Further, the Tribunal did not accept that the applicant would have been reported to the Chinese authorities as a Falun Gong practitioner by spies or informants in Australia because “he attended a small number of Falun Gong meetings during which he was not able to convince the leaders of the meetings he attended that he was a genuine practitioner”.[31]
[30] CB321, [106]
[31] CB321, [106]
On the basis of these findings the Tribunal was not satisfied the applicant satisfied the criterion provided or by s.36(2)(aa) of the Act.
Grounds of application and course of judicial review hearing
The grounds of application are as follows (emphasis and errors in ordinal):
1.The Paragraph 78 of the Tribunal decision record states: “The applicant’s representative forwarded two untranslated documents in mandarin. It was confirmed that these documents contained the Mandarin Version of his responses to the information contained in the Tribunal Letter dated 18 February 2016.
However, after my agent explained the Tribunal decision to me in Chinese, I questioned him as to why my responses to the concerns raised by the tribunal were not rendered into English and submitted to the tribunal together with my original statements. My agent affirmed me that he had my responses translated into English before having them sent to the Tribunal on 04-March-2016 in the afternoon at 2:26 O’clock. Apart from that, he also sent to me my responses in mandarin plus some Independent Country Information to the Tribunal the following day (05-March-2016) in the afternoon at 2:00 O’clock. (The proof of these email correspondences is enclosed in Annexure I).
2.Had the Tribunal failed to receive the English Version of my answers to the questions put on me by the Member, the Tribunal should immediately notify my representative or myself, which was just a phone-call away. Apparently, that did not happen.
3.Instead of requesting my MA to send through the correct and accurate English version of my responses, the tribunal seemed to have engaged an unprofessional translator, having my responses rendered into English, and made its decision accordingly.
4.However, the translation the tribunal relied on does not reflect accurately what I have written in my response to its concerns; for instance; Paragraph 72 of the decision record, the tribunal stated; “The response the applicant said that he had only been involved in a few Falun Gong activities since 2013, ....…. because he was introverted and shy and afraid that Falun Gong had been infiltrated by Chinese Government..”, which is not exactly consistent with what I said.
I stated clearly in my response to the Third concern raised by the Tribunal, that the Chinese Authority has deployed agents or informant to monitoring Falun Gong Practitioners and taking photos of them discreetly; I am afraid if my photo were taken; I’d be subjected to cruel torments and organs harvesting once being deported back to China by the Australian Government. The independent information my MA submitted to the Tribunal substantiates my claims are well-founded.
5.The Subsection s422B(3) of the Migration Act, 1958 requires that the tribunal act in a way that is fair and just. To such end, the Tribunal should assess the evidence it sought for and took it evidence into consideration in the least. Apparently, the tribunal failed to do so and relied on the inaccurate translation of my responses and as such, it erred in applying the s422B of the Migration Act which amounted to a jurisdictional error.
The applicant, who is not legally represented, made no submissions to me in support of these grounds. The Minister, however, disclosed to the applicant and to the Court that a certificate purportedly issued under s.438 of the Act (438 Certificate) was issued in relation to the applicant. The Tribunal did not disclose the certificate to the applicant.
Grounds stated in application
The grounds stated in the application are directed to paragraph 78 of the Tribunal’s reasons for decision.[32] That paragraph, which appears under the heading “Document’s [sic] received on 5 March 2016”, is as follows:
The applicant’s representative forwarded two untranslated documents in Mandarin. It was confirmed that these documents contained the Mandarin version of his response to the information contained in the Tribunal’s letter of 18 February 2016.
[32] The applicant repeated the grounds in his affidavit made on 28 April 2016
The Tribunal’s letter to which this paragraph of its reasons refers is the letter dated 18 February 2016 the Tribunal sent to the applicant in which the Tribunal invited the applicant to comment on the matters stated in the letter. [33] The matters related to the applicant’s claims concerning his father’s detention, the applicant’s detention, the applicant’s participation in Falun Gong activities in Australia, the applicant’s knowledge of Falun Gong, the applicant’s delay in applying for a Protection visa, and the applicant’s ability to obtain a Chinese passport.
[33] CB276
The applicant responded by an email sent on 4 March 2016 by the applicant’s migration agent.[34] In that email the agent stated he was appointed the migration agent for the applicant, and that he was instructed by the applicant to submit “his responses to the concerns raised by the Tribunal”. The email attached a two-page document in English titled “[applicant’s] responses to the concerns raised by the Tribunal”. The attached document contains some minor handwritten changes which are also in English. On 5 March 2016 the agent sent another email to the Tribunal stating he was instructed by the applicant to submit the applicant’s “responses (Original Chinese Version) to the concerns raised by the Tribunal”.[35]
[34] CB280-282
[35] CB283
The ground stated in the application asserts that the Tribunal did not rely on the English response the applicant’s agent provided to the Tribunal, but instead it “seemed to have engaged an unprofessional translator, having my responses rendered into English, and made its decision accordingly”. The basis of that assertion appears to be what the Tribunal stated in paragraph 72 of its reasons.
Paragraph 72 appears in a section of the Tribunal’s reasons beginning at paragraph 66 which is headed “Tribunal’s letter of 18 February 2016 and the applicant’s response”. In that section of its reasons, the Tribunal identified each of the matters the Tribunal raised in its letter dated 18 February 2016 and the applicant’s response to each of those matters. Paragraph 72 of its reasons is the Tribunal’s summary of the applicant’s response to the issues raised in the Tribunal’s letter dated 18 February 2016 which the Tribunal summarised in paragraph 71 of its reasons. The issues it there summarised related to the applicant’s claims made over the course of his application for a Protection visa about his practice of Falun Gong. In paragraph 72, of its reasons the Tribunal said as follows:
In response, the applicant said that he had only been involved in a few Falun Gong activities since 2013, mostly promoting Falun Gong practice and basic tenets, because he was introverted and shy and afraid that Falun Gong had been infiltrated by Chinese government agents which could mean he would suffer serious consequences at some time in the future.
This paragraph quite clearly purports to summarise the following passage which formed part of the English version of the applicant’s response to concern 3 stated the Tribunal’s letter which the applicant’s agent sent to the Tribunal on 4 March 2016:[36]
The reasons are two fold: Firstly, I am having an introverted character; a shrinking violet and felt shy to interact with people; Secondly, the Chinese Authority has deployed agents or informants to monitoring FaLun Gong practitioners and taking photos of them discreetly; I am afraid if my photo were taken; I’d be subjected to cruel torments and organs harvesting once being deported back to China by the Australian Government. I am at my Prime age and have bright future ahead of me.
[36] CB282
The basis of the applicant’s assertion that the Tribunal did not rely on the English response the applicant’s agent provided to the Tribunal, but instead it “seemed to have engaged an unprofessional translator, having my responses rendered into English, and made its decision accordingly”, is the additional assertion that the Tribunal’s statement in paragraph 72 of its reasons that the applicant was “afraid that Falun Gong had been infiltrated by Chinese government agents” was not “exactly consistent” with what the applicant said. The ground notes the applicant said in his response “that the Chinese Authority has deployed agents or informant to monitoring Falun Gong Practitioners and taking photos of them discreetly; I am afraid if my photo were taken; I’d be subjected to cruel torments and organs harvesting once being deported back to China by the Australian Government” (omitted words). It appears, therefore, that the basis on which the applicant asserts the Tribunal did not rely on the English translation of the applicant’s response is that the Tribunal did not set out the omitted words in paragraph 72 of its reasons.
It is true the Tribunal did not set out the omitted words in paragraph 72 of its reasons. The Tribunal, however, did state that the applicant in his response stated he was afraid Falun Gong had been “infiltrated by Chinese government agents which could mean he would suffer serious consequences at some time in the future”. On a fair reading of the Tribunal’s reasons, this statement purports to refer to, and to accurately state the effect of, the omitted words. In other words, and contrary to the assertions made by the applicant in his grounds, the Tribunal’s statement is consistent with the effect of the omitted words. It therefore follows I do not accept the applicant’s assertion that the Tribunal did not have regard to the applicant’s response to the Tribunal’s letter dated 18 February 2016 as stated in the English translation the applicant’s agent provided to the Tribunal, but that the Tribunal instead relied on a different English translation of the applicant’s response. It also follows that the Tribunal did not conduct its review of the applicant’s application contrary to any duty it may have had to act justly or fairly.
The ground stated in the application, therefore, fails.
Section 438 certificate
The Minister has disclosed to the applicant and to the Court the existence of a certificate that had been issued purportedly pursuant to s.438 of the Act that relates to the applicant but which the Tribunal had not disclosed to the applicant. The Minister accepts that, for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection, [37] the purported certificate is invalid, but he submits that this should not invalidate the Tribunal’s decision because the documents are such that had the certificate and the documents covered by the certificate been disclosed to the applicant, that could not have impacted the review the Tribunal conducted. The basis of that submission is that the documents covered by the certificate are irrelevant to any of the issues that were before the Tribunal.
[37] [2016] FCA 1081
The Minister’s submissions must be considered having regard to three decisions of the Full Federal Court, these being Minister for Immigration and Border Protection v CQZ15 and Anor,[38] Minister for Immigration and Border Protection v BJN16 and Anor,[39] BEG15 v Minister for Immigration and Border Protection and Anor.[40] The High Court, however, has granted special leave to appeal from the orders made by the Full Federal Court in two of those judgments, CQZ15 and BEG15.[41] In BHG15 v Minister for Immigration and Border Protection[42] Barker J recently recorded a submission the Minister made in that case that, given the High Court granted special leave in CQZ15 and BEG15, it is open to the Court to reserve judgment in the appeal, pending the determination of the High Court appeals in these matters.
[38] [2017] FCAFC 194
[39] [2017] FCAFC 197
[40] [2017] FCAFC 198
[41] BEG15 v Minister for Immigration and Border Protection & Anor [2018] HCATrans 80 (10 May 2018); CQZ15 v Minister for Immigration and Border Protection & Anor [2018] HCATrans 79 (10 May 2018)
[42] [2018] FCA 761
I propose to do what Barker J did in BHG15, and that is to publish my reasons in relation to the grounds on which the applicant relies, and otherwise reserve judgment on the matters arising from the non-disclosure of the purported s.438 certificate.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 7 June 2018
2
4
2