AVS15 v Minister for Immigration

[2015] FCCA 2717

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2717

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the Tribunal failed to allow the applicant to apply for additional time to submit further evidence – whether the Tribunal failed to consider an integer of the applicants claims and evidence – whether the Tribunal’s reasons were supported by evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362AA, 424A, 424AA, 425, 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: AVS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1425 of 2015

Judgment of: Judge Street

Hearing date: 6 October 2015

Date of Last Submission: 6 October 2015

Delivered at: Sydney

Delivered on: 6 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms B Griffin
Australian Government Solicitors

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1425 of 2015

AVS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 2 May 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of China and arrived in Australia on 6 May 1997 as the holder of a subclass 456 Business (Short Stay) visa.  The applicant applied unsuccessfully for protection in 1997 and was due to be removed from Australia on 4 January 2003 and thereafter remained as an unlawful citizen until lodging a second application for protection on 19 December 2013 consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.

3. The applicant remained in Australia prior to the second application for protection from 4 January 2003 until 30 November 2013.  The Tribunal identified the applicant’s claims that were advanced in his first protection visa application as well as the further claims lodged in support of his second application which were summarised in para.16 of the Tribunal’s reasons as follows:

   16. The applicant’s claims in his second application for a Protection visa lodged on 30 November 2013 are summarised as follows:

    His business partners used their business to borrow a substantial amount of money to operate a smuggling business to bring in prohibited materials to China. They were apprehended by the Chinese authorities, detained and sentenced to gaol. The Chinese authorities wanted to arrest him as a principal offender. The authorities confiscated the prohibited materials and as a result they were unable to pay their creditors.

    The Chinese authorities ordered the local government to confiscate his land. Since coming to Australia, his household registration has also been cancelled.

    He fears harm, mistreatment, detention and being unable to claim his rights.

    If he returns to China he will be arrested and detained in relation to outstanding charges. He will be harmed by creditors and debt collectors. He will be mistreated by the local government in relation to land.

    He came to Australia to escape harm and mistreatment. He will not be able to obtain protection in China.

4. The Tribunal noted that the applicant was interviewed on 15 May 2014 and at that interview he reiterated and expanded his claims.  On 23 February 2015 the applicant was given an invitation to appear before the Tribunal, which hearing was to take place on 1 May 2015.  The applicant sent a response to that hearing invitation. 

5. The applicant appeared before the Tribunal on 1 May 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by a registered migration agent.  The hearing commenced at 8.35 am and concluded at 10.40 am. 

6. During the course of the hearing before the Tribunal the applicant requested further time to lodge with the Tribunal evidence in relation to why relevant information was omitted from his application for protection that was lodged on 30 November 2013 and why incorrect information was provided in that visa application. 

7. The Tribunal granted the applicant until the close of business on 1 May 2015 as an opportunity to provide that information.  It is clear from the Tribunal’s reasons that in fact further information was lodged by the applicant consistent with the opportunity provided by the Tribunal following the conclusion of the hearing at 10.40 am. 

8. That information comprised an additional statement by the applicant which was emailed to the Tribunal at 1.27 pm by the registered migration agent and attached a statutory declaration by the applicant.  No request for any further time was conveyed in that communication from the registered migration agent on behalf of the applicant. 

9. In rejecting the applicant’s claims under s.362AA the Tribunal found the applicant was not a witness of truth. The Tribunal formed the view that the applicant had fabricated his claims and was manufacturing some of the evidence he was giving. The Tribunal formed the view that the applicant was prepared to say anything to obtain a protection visa without regard to the truth, and the Tribunal found the applicant not to be a credible witness.

10. It was in those circumstances that the Tribunal relevantly found:

    51. The Tribunal does not accept that the applicant and two business partners established a fashion wholesale shop in China or that they used it as a front to import pornographic books and DVDs into China. It follows that the Tribunal does not accept any of the applicant’s claims that flow from this. It also follows that the Tribunal does not accept that the applicant is of adverse interest to the Chinese authorities in relation to this business or the sale of pornographic material or that he will be arrested and detained in relation to outstanding charges in this regard.

    52. The Tribunal does not accept that the applicant borrowed money from creditors to set up a business or that he has outstanding monies owing to creditors. The Tribunal does not accept that creditors wait outside the applicant’s home every day and will beat him and arrest him on his return to China. It follows that the Tribunal does not accept that creditors are looking for the applicant or will harm him on his return to China now or in the reasonably foreseeable future.

    53. The Tribunal does not accept that the Chinese authorities ordered the local government to confiscate the applicant’s land or that he will be mistreated by the local government in relation to land if he returns to China now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant’s household registration has been cancelled. The Tribunal does not accept that the applicant is unable to claim his rights.

    54. The Tribunal does not accept that the applicant was not able to obtain a passport from his local Police Station, that he paid a bribe to obtain his first passport or alternatively that his first passport was a fraudulent document.

    55. The Tribunal does not accept that the applicant left China because he feared for his safety or that he came to Australia to escape harm, mistreatment, detention or persecution. The Tribunal does not accept that if the applicant returns to China now or in the reasonably foreseeable future there is a real risk that he will suffer significant harm because of his religious beliefs, family background and activities in China. In view of the Tribunal’s findings in relation to the applicant’s credibility, and for the reasons given above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons put forward by him.

    56. Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.

    57. Accordingly, the Tribunal is not satisfied that that there are 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 that he will suffer significant harm as defined. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).

11. The grounds of the application are as follows:

    1. The Tribunal erred in arrive at a conclusion without supported evidence.

    Particulars:

    a) At paragraph 32 of the Tribunal decision "”the applicant did not complete question 14 in relation to his religion and left it blank. This is in consistent with his claim that he is a Christian.

    2. The Tribunal failed in compliance with mandatory procedures which are set out in s424AA to advise the applicant that he may seek additional time to comment or respond to the information. If the applicant does not request additional time, and the Tribunal considers the applicant reasonably needs additional time - adjourn the review.

    Particulars:

    a) At paragraph 35 of the Tribunal decision,, "He (the applicant) provided the Department with a letter from that company which stated that the company deals with project contracting, trade import and export, overseas inversion and real estate development. This is not consistent with his evidence in relation to where he worked. When the Tribunal put this information to the applicant, pursuant to s424AA of the Act, he responded that he had no idea about this information. He stated that he had never worked as a manager.

    3. The Tribunal failed to consider all of the applicant's case.

    Particulars

    a) The applicant has admitted that he has "·no idea'" in every occasion of interview or hearing about the information of his job description provided for his subclass 456 Business visa in first entry into Australia. That is because of that the applicant has paid someone to obtain a visa for the applicant to flee his country.

12. In relation to ground 1 para.32 of the Tribunal’s reasons relevantly is as follows:

    32. In his second application for a Protection visa, the applicant did not complete question 14 in relation to his religion and left it blank. This is inconsistent with his claim that he is a Christian. When the Tribunal raised this as an issue with the applicant, he responded that he had nothing to say. He then stated that everyone has a religion. He stated that he believes in this religion and has faith. He stated that he wants Jesus to be his saviour.

13. It was a matter for the Tribunal to evaluate the evidence of the applicant, and the blank answer in relation to the question in the application concerning his religious belief was a logical and rational matter for the Tribunal to take into account.  Ground 1 fails to identify any jurisdictional error. 

14. In relation to ground 2 it is clear that the Tribunal complied with the obligation under s.425 in inviting the applicant to appear before the Tribunal, consistent with the statutory regime and that the applicant had a genuine hearing to give evidence and present arguments. In circumstances where the applicant effectively had two months to prepare for that hearing, and having a long migration history in which he had earlier unsuccessfully applied for protection, the Tribunal was entitled to take into account all the matters including the representation on behalf of the applicant at the hearing in determining the time for further information to be provided.

15. I am satisfied that the applicant had a genuine hearing consistent with the obligations under s.425 and that no breach of s.425 is made out.

16. The alleged non-compliance with s.424AA appears in substance to be a complaint of a failure by the Tribunal to provide an adjournment or more time to the applicant in response to the concerns raised by the Tribunal with the applicant as identified in para.18 and para.38 as follows:

    18. At the end of the hearing, the Tribunal provided the applicant further time until close of business on 1 May 2015 to provide the Tribunal with further evidence in relation to why relevant information was omitted from his application for a Protection visa lodged on 30 November 2013 and why incorrect information was provided in that visa application. The Tribunal received a Statutory Declaration dated 1 May 2015 from the applicant. In this Statutory Declaration, he re-iterated the claims he made during the Tribunal hearing on 1 May 2015. It did not provide any evidence in relation to the omission of relevant information from his application for a Protection visa lodged on 30 November 2013 or in relation to why incorrect information was provided in that visa application.

    …

    38. In his second application for a Protection visa, the applicant provided no information in relation to his employment history. When the Tribunal pointed this out to the applicant, he responded that he provided the information to his second migration agent. He stated that his migration agent told him it would be treated as additional information. He stated that he thought his migration agent provided that information. The applicant requested further time to lodge evidence with the Tribunal in relation to why relevant information was omitted from his application for a Protection visa lodged on 30 November 2013 and why incorrect information was provided in that visa application. The Tribunal granted the applicant until close of business on 1 May 2015 to do so. The applicant lodged with the Tribunal a Statutory Declaration dated 1 May 2015 following the hearing. This Statutory Declaration did not address these issues.

17. I accept the first respondent’s submission that this was a case where the Tribunal found the applicant was not a witness of truth, and that s.424A has no application to the subject of appraisals, thought processes and considerations of the applicant’s submissions as they are not information that enliven an obligation under s.424A.

18. I also accept the first respondent’s submission that the information upon which the subject of appraisals, thought processes and considerations were based, in this case being the earlier visa application, was not required to be put to the applicant under s.424A as it did not involve on its terms a rejection, denial or undermining of the applicant’s claims, and therefore s.424A was not enlivened.

19. I also accept the first respondent’s submission that it is clear from paras.35 and 40 that the Tribunal did put information to the applicant in accordance with s.424AA concerning the applicant’s earlier application and his asserted occupation as a manager of the [X] company. I accept the first respondent’s submission that the applicant has failed to establish any breach of s.424AA or a breach of s.424A.

20. I accept the first respondent’s submission that, insofar as ground 2 advances that the time period provided for the advancing of further information by the Tribunal was said to be unreasonable, that the Tribunal was entitled to take into account the long migration history of the applicant and the time that had expired since the second application for protection and the notice given in respect of the invitation for hearing, and the representation by a registered migration agent in determining what was a reasonable and proportionate period for the provision of information as to why relevant information was omitted from the protection visa application lodged on 30 November 2013 and why incorrect information was provided in that visa application.

21. I accept the first respondent’s submission that it is clear that no additional time was sought by the applicant or the migration agent in response to the opportunity provided and that the applicant did in fact provide further information within that timeframe. 

22. I am not satisfied that the Tribunal in the present case acted in any way unreasonably or in excess of its jurisdiction in providing a limited timeframe for the provision of further information.  Given the matters referred to the limited timeframe in the present case cannot be said to be disproportionate or lack in evidence in terms of justification.  Ground 2 fails to make out any jurisdictional error.

23. Ground 3 is in substance an inadmissible challenge to the merits of the application and fails to identify any jurisdictional error.  For these reasons the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 October 2015