AWE15 v Minister for Immigration

[2015] FCCA 3476

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWE15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3476

Catchwords:
MIGRATION – Judicial review – Chinese national – refusal of protection visa – claimed adherence to Falun Gong – adverse credibility finding – extension of time.

Legislation:

Migration Act 1958 (Cth), ss.441C, 441G, 474, 477

Privacy Act 1988 (Cth)

Wei Wei v Minister for Immigration and Border Protection [2015] HCA 51
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
Ayoub v Minister for Immigration and Border Protection [2015 FCAFC 83
ABC15 v Minister for Immigration and Border Protection [2015] FCA 1314

Applicant: AWE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 31 of 2015

Judgment of: Judge Young

Hearing date: 24 September 2015

Date of Last Submission: 24 September 2015

Delivered at: Darwin

Delivered on: 23 December 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms Buchanan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The time for filing of the application be extended to 26 May 2015.

3. The application filed 26 May 2015 is dismissed.

4. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 31 of 2015

AWE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the former Refugee Review Tribunal (“the Tribunal”) and an extension of time in which to do so. 

2. For reasons that follow I extend time to allow the applicant to make the application but otherwise dismiss the application.

Background

1. The applicant, AWE15, is a Chinese national. He first entered Australia on 24 July 2005 on a Temporary Work visa. His wife was granted a visa as a family member. She is a “Part D” applicant meaning she has no substantive application of her own and the success of her application depends on the success of the applicant’s application. In these reasons the applicant and his wife together are referred to as “the applicants”.

2. On 25 September 2005 the applicant’s sponsor advised that the applicant had stopped working. On 27 March 2008 his visa was cancelled. The applicant lodged an application to review this decision. The review was unsuccessful and the decision was affirmed on 17 July 2008.  The applicant thereafter failed to depart from Australia and he and his wife became unlawful stayers. On 27 January 2010 the applicant’s Chinese passport expired.

3. On 22 December 2010 the applicants were granted bridging visas to depart Australia. On 5 January 2011 the bridging visas expired without the applicants having departed and again they became unlawful stayers. 

4. For the best part of the next two years the applicants lived in rural areas and failed to come to the notice of the authorities.

5. On 3 December 2013 the applicant appointed a migration agent. On 12 December 2013 the applicants were detained. On 23 December 2013 the applicant sought a protection visa.

6. On 4 February 2014 the Minister’s delegate refused to grant a protection visa.

7. On 11 April 2014 the applicant was transferred to the Wickham Point detention centre outside Darwin.

8. On 2 June 2014 the Tribunal affirmed the delegate’s decision. The applicant sought judicial review. On 12 January 2015 the Minister consented to an order remitting the matter to the Tribunal for further consideration. This followed a “data breach” in February 2014 when certain details about the applicant and others were displayed on a government website.

9. On 1 February 2015 the applicant communicated with the Tribunal registry asking for the date by which he should provide any further materials. In that email he, or more likely a person speaking on his behalf, said that he was discussing the matter with his “former agent”. On 4 February 2015 the Sydney registry of the Tribunal made a note of a telephone call from Ms Wang, the applicant’s migration agent, advising that she still acted for the applicant and would be submitting a response. In the applicant’s “response to hearing invitation” document dated 8 February 2015, which I infer was completed by Ms Wang on behalf of the applicant, it was said that the applicant would attend the tribunal hearing but his “representative” would not. She was to be his “recipient only”. I take it that this was a reference to section 441G of the Migration Act (“the Act”) which says that the applicant may give to the Tribunal written notice naming a person authorised to receive documents in connection with the review. On 23 February 2015 the applicant appeared before the Tribunal, apparently by video link from Wickham Point, with a Cantonese interpreter. His wife did not appear.

10. On 2 March 2015 a hand written statement in Chinese with an English translation was sent by email to the Tribunal by the applicant. The email was sent from Ms Wang’s email address and I infer that it was sent on behalf of the applicant rather than by him personally. This statement responded to apparent queries from the Tribunal about the applicant’s motivation in seeking a new Chinese passport in 2013 and his understanding of Falun Gong.

11. On 3 March 2015 the application was rejected by the Tribunal.

12. On 27 May 2015 the applicant applied for judicial review. He stated that he received notice of the decision on 8 (or 18) May 2015.

13. Under section 477(1) of the Act an application to this Court must be made within 35 days of the date of the Tribunal’s written decision. The application ought to have been made by 7 April 2015 and is about 50 days late.

14. Section 477(2) provides that the Court may extend the 35 day period if the Court is satisfied that it is “necessary in the interests of the administration of justice…” to do so.

The extension of time

1. The reason given in his application by the applicant for the delay is that:

   The Immigration officer on 16^th March said that the result was not available at that time. I did not receive the result of on the (sic) 8^th May 20[15].

2. The applicant told me from the bar table, through a Cantonese interpreter, that he had requested a copy of the decision on 16 March 2015 from an unidentified official and had been told to “be patient and wait for the result”. The decision was in fact sent to the applicant’s authorised migration agent on 4 March 2015[1]. Section 441C(4) of the Act deems the applicant to have received the document seven working days later. There was no explanation as to why the applicant did not receive, as he claims, notice of the decision from his migration agent. The applicant stated from the bar table that he had no contact with his migration agent since his transfer to Wickham Point in 2014 and had learnt of the Tribunal decision from another source. He also said from the bar table that he was first informed of the decision not on 8 May 2015, as stated in his judicial review application, but on 18 May 2015.

   [1] Court book p 163.

3. Counsel for the Minister told me that the applicant’s assertions from the bar table were contested and, accordingly, I invited the applicant to give evidence. He was cross-examined and the evident involvement of his migration agent immediately before and after the Tribunal hearing on 23 February 2015 pointed out. The applicant was an unreliable witness. For example, he claimed that the “response to hearing invitation” document which appeared to authorise Ms Wang to receive documents on his behalf in connection with the review was not signed by him. The signature appeared to me to be very similar to the signature appearing on the handwritten Chinese document which the applicant admitted was signed by him and I find the signature on the “response to hearing invitation” document is the applicant’s. It seems plainly incorrect, contrary to the applicant’s claim, that he had no contact with the migration agent after his transfer to Wickham Point. There was some contact around the time of the Tribunal hearing on 23 February 2015 as is evident from the fact of the applicant’s additional statement being emailed to the Tribunal on 2 March 2015. Eventually the applicant altered his position to one of “hardly any contact” with his migration agent after his transfer to Wickham Point.

4. Although I have concluded that the applicant was not a reliable witness I am reluctant to conclude that he was deliberately untruthful given the difficulties of cross-examination through a Cantonese interpreter about English language documents. I am conscious of the potential difficulty of effective communications between an agent and a person in detention more than 3,000 km away. In the absence of direct evidence I feel uneasy about simply dismissing his claim that he did not receive notice of the Tribunal decision until May 2015. Although the notice of decision was undoubtedly properly sent to the applicant’s Migration Agent I find, with some reservation, on the balance of probabilities that the applicant did not receive actual notice of the Tribunal decision until 18 (or 8) May 2015.

5. The other matters which I consider are the extent of the delay which, in my view, is not inordinate; the reason for the delay, which has been discussed above; the prejudice, if any, suffered by the respondent and the merits of the application. The respondent does not point to any prejudice. I have concluded that the application ought to be dismissed but I do not think that alone is sufficient reason to refuse to extend time. Accordingly I extend time in which to make the application to the date of filing on 26 May 2015[2].

   [2] Wei Wei v Minister for Immigration and Border Protection [2015] HCA 51, [40].

Judicial review

1. The Tribunal’s decision is a privative clause decision under section 474 of the Act and the applicant must show jurisdictional error before the decision may be set aside. The grounds of jurisdictional error alleged by the applicant are (with some slight editing by me to reflect presumed meaning) as follows:

   Ground 1

   The Tribunal rejected all the applicant’s claims to be a Falun Gong practitioner which is irrational. The Tribunal failed to investigate the country information thoroughly and failed to take relevant conditions [considerations?] into account.

   Particulars

   1.During both the Tribunal hearing[s] the applicant mentioned the spies that the Chinese government sent to Australia which is [evidenced] from the statutory declaration made by the former Chinese police officer, Chen, on 24 November 2005. The declaration is about the treatment of Falun Gong practitioners in China and the Chinese government’s collection of information on Falun Gong practitioners outside China including Australia. The whole declaration is associated with the applicant’s fear [of persecution] claims.

   2.The Tribunal assessed the applicant’s claims as implausible and far-fetched but did not consider some of the claims had happened over years. The applicant mainly concentrated on the incidents but lost the time track during the cross-examination.

   Ground 2

   The Tribunal totally ignored the severe consequences of the data breach. The release of the applicant’s personal information was contrary to law.

   Particulars

   1.The release of the personal information was an interference with the privacy of an individual for the purposes of the Privacy Act1988.

   2.Further and in the alternative, the release of the personal identifier information, or information derived from personal identifier [information], is contrary to section 336E of the Act in that conduct (namely the act which caused the disclosure to occur as opposed to the disclosure itself) was intentional or reckless and the disclosure was not a permitted disclosure.

   3.The release of the applicants’ personal information has caused the applicant to have a well-founded fear that their removal from Australia and return to China will involve a breach of Australia’s non-refoul[e]ment obligations under the Refugee Convention or the Convention against Torture or the International Convention on Civil and Political Rights.

   4.There is a likelihood that the Respondent will purport that it is reasonably practicable to remove the applicant pursuant to section 198 or 198AD of the Act irrespective of whether an assessment of Australia’s non-refoul[e]ment obligations in relation to the February 2014 disclosure of the applicant’s personal information has been carried out in a way which the applicant is accorded procedural fairness.

Ground 1

1. Ground 1 makes two substantive points: the Tribunal’s credibility findings against the applicant were irrational and the Tribunal ignored the evidence including the country information in general and the statutory declaration of the former Chinese police officer, Chen, in particular.

2. Dealing with the last point first, there is no evidence of a statutory declaration by a former Chinese police officer, Chen, in the Tribunal file or the applicant’s own documents. The applicant did not have a copy with him at court. It was not included in the court book prepared by the Minister. Counsel for the Minister asserted from the bar table that no such document had been given to the Tribunal although she did not rely on any evidence to that effect from the Tribunal itself. There is no reference to such a document in the reasons for decision of the (first or second) Tribunal. In the circumstances there does not appear to be a basis for reaching any conclusion about the existence or otherwise of this document. If it was provided to the Tribunal it may be presumed to have been ignored but I can find no indication that it was provided to the Tribunal. The Tribunal referred[3] to the applicant’s claim that he had read about the Chinese government sending thousands of spies to Australia to infiltrate the community here including the Falun Gong movement and that he had been likely informed upon by one of these spies but there is no reference to the supposed statutory declaration of Chen. In the absence of some evidence that an element of the applicant’s claim has been ignored I am not satisfied that any error has been demonstrated by the Tribunal in this regard.

   [3] Tribunal decision, [33].

3. The applicant did not point to any particular aspect of the evidence or country information that had been ignored by the Tribunal. The Tribunal referred to country information on two points. First, in relation to the “data breach”, the Tribunal, relying on advice from the Department of Foreign Affairs and Trade, concluded that, assuming the information in the data breach had been accessed by the Chinese authorities, there was evidence that failed protection visa applicants were not necessarily imputed with political disloyalty by the Chinese authorities and that it was viewed as “commonplace behaviour rather than a sign of political disloyalty”[4]. Secondly, the Tribunal discussed the banning of Falun Gong and the persecution of its adherents in China. That its adherents were persecuted in China was not in contention. In any event, country information and the weight to be given to it is a matter for the Tribunal[5]. The task that the applicant faced before the Tribunal applicant was to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts[6]. What he needed to establish was not that Falun Gong and its adherents were persecuted in China – the Tribunal accepted that was so – but whether he had been an adherent or a genuine practitioner in China or in Australia. This depended on his credibility.

   [4] Tribunal decision, [18].

   [5] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45]; (2009) 113 ALD 246 at [45].

   [6] Aporo vMinister for Immigration and Citizenship [2009] FCAFC 123 at [45] referring to Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.

4. The applicant claims that the Tribunal’s adverse finding about his credibility was irrational. I take this to be a claim that the decision to which the Tribunal came is one “…  at which no rational or logical decision maker could arrive on the same evidence”[7] or “which lacks an evident and intelligible justification”[8]. The Tribunal undertook an examination of the applicant’s understanding of Falun Gong and of the chronology and course of events surrounding the applicant’s claimed involvement with Falun Gong. The Tribunal concluded, after inviting the applicant to discuss his personal spiritual experience, that he appeared to demonstrate a fairly superficial level of engagement with Falun Gong[9]. The Tribunal’s discussion of this aspect is detailed and, after acknowledging that any assessment of the nature and depth of another person’s spiritual or religious experience is necessarily subjective, it weighed that factor along with other more objective considerations in reaching its conclusion.

   [7] SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175, [10].

   [8] Ayoub v Minister for Immigration and Border Protection [2015 FCAFC 83, [52] citing Minister for Immigration and Citizenship v Li [2013] HCA 18: (2013) 249 CLR 332, [76].

   [9] Tribunal decision, [28].

5. The Tribunal referred to the applicant’s claim that he continued to practise Falun Gong after his arrival in Australia. He claimed, however, not to have contacted any Falun Gong groups in Australia until more than three years after his arrival. This was after his visa cancellation in March 2008 and the Migration Review Tribunal affirmation of that decision in July 2008[10]. He told the Tribunal that he only practised with a Falun Gong group in Sydney for about a year between late 2008 and early 2009[11]. He also said that it was in early 2011, while he and his wife were awaiting Chinese travel documents, that his son told him of the danger he faced in China resulting from his adherence to Falun Gong. The Tribunal noted that the applicant had also said that this warning had been given as early as 2008 or 2009. The Tribunal found that his willingness to apply for Chinese travel documents for travel back to China in late 2010 (when he apparently applied for the documents) was inconsistent with a prior warning that he was in danger from the Chinese authorities[12]. The Tribunal noted the applicant’s claim that he had applied for travel documents only in order to make money transfer easier.

   [10] Tribunal decision, [29].

   [11] Tribunal decision, [33].

   [12] Tribunal decision, [34].

6. The Tribunal concluded that the applicant’s claims about having associated with a Falun Gong group in Sydney or elsewhere appeared to be unsupported by any other evidence, specifically evidence from fellow Falun Gong practitioners in Sydney. The Tribunal noted that the applicant had given different explanations for this at different times: that he had lost the telephone number of a fellow practitioner when he was taken into detention and that practitioners withheld their full names from each other and he had not got to know them well[13].

   [13] Tribunal decision, [35].

7. The Tribunal considered the applicant’s claim that he had moved from Sydney to Port Macquarie in 2011 to avoid informers and generally avoid danger to be inconsistent with his claim of having subsequently participated in a Falun Gong protest outside the Chinese consulate. The Tribunal did not accept the applicant’s explanation that he was encouraged to join the protest because he had heard of a change in leadership in China and felt more optimistic about human rights there[14]. The Tribunal noted that the applicant had claimed to have met the protesters by chance but had told the previously constituted Tribunal that the decision to protest was a deliberate one made when he attended a Falun Gong exercise session while visiting Sydney.

   [14] Tribunal decision, [36].

1. The Tribunal considered the applicant’s explanation for the long delay between the arrival in Australia of the applicant and his wife in 2005 and his application for a protection visa in 2013. The Tribunal gave detailed consideration to the applicant’s explanations. These included claims by the applicant that he had not known, during  a period that he was represented by a migration agent, that he and his wife would be required to leave Australia on the expiry of their previous visas, that for a considerable period he did not know it was possible to claim refugee status in Australia, and, despite having been warned by his son sometime between 2008 and 2011 that he was in danger in China, he had, instead of seeking a protection visa, gone into “hiding” in Port Macquarie and worked illegally. The Tribunal concluded that the applicant’s explanations were “highly unsatisfactory”.

2. The Tribunal then listed the many inconsistencies and incongruities in the applicant’s evidence and concluded that he was an unreliable witness[15]. The Tribunal was not satisfied on the evidence that the applicant faced a real chance of persecution in China flowing from any Falun Gong involvement[16]. This conclusion was, in my view, supported by the evidence and was open to the Tribunal. It had an evident and intelligible justification. It was not irrational.

   [15] Tribunal decision, [43], [44].

   [16] Tribunal decision,[46].

3. The applicant did not expand before me on the claim that the Tribunal had failed to investigate the country information thoroughly or failed to take relevant conditions [or considerations] into account and I am unable to identify his precise complaints, if any. To the extent that the applicant was referring to the statutory declaration of the former police officer Chen I find that this document, if it exists, was not before the Tribunal.

Ground 2

1. Ground 2[17] has two elements: first, the claim that the Tribunal “totally ignored the severe consequences of the data breach” and, secondly, an assertion that the release of the applicant’s personal information was “contrary to law”.

   [17] Ground 2 and its particulars appear to have been drawn from a template. It is in identical terms to Ground 2 of the application for review considered in ABC15 v Minister for Immigration and Border Protection [2015] FCA 1314, see [14].

2. In fact, the Tribunal considered the “data breach” in some detail. The Tribunal noted that the applicant was advised by the Minister of the release of information about him and his wife, noted that it had discussed the nature of the breach and the information released with him and noted that the applicant had been invited to outline any fears arising from it. The Tribunal noted the applicant’s claims that the Chinese authorities would be able to glean enough information to infer that the applicants had unsuccessfully sought asylum in Australia and that the seeking of asylum would be viewed unfavourably by Chinese authorities. The Tribunal rejected the applicant’s claims. It pointed to two sources of country information, advice from the Department of Foreign Affairs and Trade and a report from the Austrian Centre for Country of Origin and Asylum Research and Documentation, which stated that there is no information to suggest that failed asylum seekers are viewed as politically disloyal or subjected to serious or significant harm (or any harm) on their return[18].  The first element of Ground 2 is not made out.

   [18] Tribunal decision, [16] - [21], [54], [55].

3. In paragraphs 3 and 4 of the particulars in Ground 2 the applicant makes the claim that the “data breach” has caused him to have “a well-founded fear that their removal from Australia to China will involve a breach of Australia’s non-refoulement obligations …”.

4. The claim that the removal of the applicants from Australia to China will be a breach of Australia’s non-refoulement obligations under international law does not obviously appear to be a claim of jurisdictional error. It does not appear to be a claim that the Tribunal failed to consider this question but rather a new substantive claim about the consequences of the Tribunal’s decision. If so, the claim is not one this court can consider on an application for judicial review[19].

   [19] See ABC15 v Minister for Immigration and Border Protection [2015] FCA 1314 at [20], [21] which considered the same ground of review.

5. In any event, the substance of the applicant’s claim in paragraph 3 which is said to give rise to the non-refoulement obligation, a fear of harm flowing from the “data breach”, was considered by the Tribunal and rejected.

6. Paragraphs 1 and 2 of the particulars in Ground 2 refer to an alleged breach of the Privacy Act1988 (Cth) constituted by the “data breach”.

7. This fails to raise any ground of jurisdictional error by the Tribunal[20].

   [20] Ibid.

8. The application for judicial review is dismissed. The applicant is to pay the first respondent’s costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  23 December 2015