AWZ17 v Minister for Immigration

[2017] FCCA 2572

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWZ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2572

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – Tribunal complied with its statutory obligations in the conduct of the review – the applicant had a real and meaningful hearing – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36,438, 476

Applicant: AWZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 628 of 2017

Judgment of: Judge Street

Hearing date: 24 October 2017

Date of Last Submission: 24 October 2017

Delivered at: Sydney

Delivered on: 24 October 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,580.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 628 of 2017

AWZ17

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 in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia on 25 March 2014 as the holder of a Visitor subclass 600 visa. That visa ceased on 25 June 2014. It appears that the applicant lodged the application for a protection visa with the Department on 19 June 2014. 

3. On 23 March 2015, the delegate found the applicant failed to meet the criteria under the Act and refused the application for the protection visa. The delegate raised concerns in relation to the applicant’s credibility and the lack of documentation to support his claims. The applicant claimed to fear harm if returned to China because he would be arrested, sentenced and imprisoned by the Chinese authorities for ten years for illegally overstepping the appeal process because he forwarded a petition to the authorities in Beijing about the fine or  social compensation fee for breaching the family planning policy in respect of having only one child and having his wife have a contraceptive operation that caused her to be disabled in respect of which the applicant complained about inadequate compensation.

The Tribunal’s decision

1. The applicant applied for review on 20 April 2015. By letter dated 21 November 2016, the applicant was invited to attend a hearing on 21 December 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal in its reasons dated 3 February 2017 identified the background to the application for review.  The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims and evidence.

2. The Tribunal referred to the applicant’s claim that he still owed the social compensation fee and his claim that on 25 October 2013 he was detained and driven away and taken to a detention centre and placed in an interrogation room. The applicant alleged that he was forced to undergo education and was released after a few days on 4 November 2013. The applicant alleged that a few weeks later, officers from the town government went to his house and told him that he had illegally overstepped the appeals process and would be imprisoned for ten years.  The applicant alleged he was afraid and escaped to a friend’s place, who helped him prepare documents to travel to Australia. 

3. The Tribunal referred to the fact that the applicant was able to depart China legally on a passport issued to him in his own name and that the delegate had suggested that this indicated he was not of adverse interest to the Chinese authorities at the time of his departure. The Tribunal noted that the applicant indicated that he had no comment in response to what the delegate had raised in that regard.

4. The Tribunal asked the applicant about whether he had photographs of his children and the Tribunal noted that the applicant showed a photo that appeared to be the same photo that had been shown at the time of the Department interview. The Tribunal asked the applicant whether he had any SMS messages from his family and the applicant said he did not and missed his family but that he just called them. The Tribunal put to the applicant it seemed highly unusual that two years after his arriving in Australia, the applicant had no evidence of any communications with his wife or four children.  

5. The Tribunal explored with the applicant at the hearing why he had left China and raised with him his written statement that suggested a different reason. The Tribunal also raised with the applicant at the hearing having difficulty understanding what it is that was alleged to lead to his wife being paralysed and referred to the applicant’s different answers in relation to the wife’s treatment. The Tribunal expressly raised with the applicant that his oral evidence was inconsistent with his written statement and raised different aspects of that inconsistency with the applicant during the hearing.

6. The Tribunal also took into account that the applicant was able to depart China on a passport issued in his own name and asked whether he had any difficulties. The applicant alleged that he reported once to the police, but left China before he was required to report a second time. The Tribunal raised with the applicant that it was concerned that his evidence about his past experiences in China had been untruthful.  The Tribunal explored inconsistencies between the applicant’s written statement and his oral evidence and what the Tribunal found to be significant omissions from the written statement.

7. The Tribunal referred to the post-hearing submissions received by the Tribunal. The Tribunal was not satisfied that the applicant has provided truthful evidence in relation to his family composition or his past experiences in China. The Tribunal found it was unable to place any weight on the photographs produced by the applicant.

8. The Tribunal found the applicant’s evidence to the Tribunal was inconsistent with the claims set out in his written statement in relation to several matters of central significance in the context of his claims.  The Tribunal also identified its concern that the applicant was able to depart China on a passport in his own name, given his claims to have owed a substantial debt to the government, to have been arrested and to have failed to comply with a requirement to report to the police. The Tribunal found the applicant’s willingness to approach Chinese authorities in Australia in order to obtain a new passport in circumstances where he had no immediate need for a new passport and his apparent lack of concern about doing so also casts serious doubt over his claim to fear persecution by the Chinese authorities.

9. The Tribunal found that the cumulative effect of these features in the applicant’s evidence is that the Tribunal is not satisfied that any of the applicant’s claims are true. The Tribunal was not satisfied the applicant departed China owing to any fear for his safety or wellbeing. The Tribunal was not satisfied the applicant was of any interest to the Chinese authorities at the time of his departure or at the time of decision. The Tribunal was not satisfied there is a real chance or risk that the applicant would be seriously or significantly harmed as a consequence of his past experiences in China, should he be returned to China now, or in the reasonably foreseeable future. 

10. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act. The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 22 June 2017, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds of the application are as follows:

   1. The basis of my application is due to the harm which I have received from the government is true, and the threats made against me are very serious. I myself and my family are unsafe in my hometown of China, and therefore are seeking protection in Australia from the Chinese government.

   2. I will be harmed if I return to my home country due to the threats made against me, and my lobbying of the government back in my village.

   3. I therefore ask the Australian government and its authorities to reconsider my application for protection as I will be harmed if I return to China.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further review. The Court explained that, if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

5. From the bar table, the applicant maintained that he was asked to provide documents but could not and complained about the one child policy as well as referring to the photograph which the Court takes to be a reference to the photograph referred to in the Tribunal’s reasons. Nothing said by the applicant from the bar table identified any jurisdictional error. The applicant’s submissions in substance were an invitation for this Court to engage in an impermissible merits review. This Court does not have power to revisit the merits. The applicant’s disagreement with the findings does not identify any jurisdictional error.

Ground 1

1. In relation to ground 1 in the application, this is in substance a restatement of the applicant’s claims and does not identify any relevant error in the reasons of the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Ground 1 in substance is an invitation to this Court to engage in an impermissible merits review. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. Ground 2 in substance is a repetition of the applicant's claims and does not identify any jurisdictional error. 

Ground 3

1. Ground 3 is also a repetition of the applicant’s claims and a request for exercise of a power to reconsider the application. This Court has no power to grant relief on compassionate grounds. Ground 3 fails to make out any jurisdictional error. 

Section 438 certificate

1. The first respondent, consistent with its duty as a model litigant, has drawn the Court’s attention to the existence of a certificate issued under s 438 of the Act dated 23 March 2015. The first respondent has tendered the documents the subject of the certificate which are documents as to the identity of the applicant. The identity of the applicant is not an issue before the Tribunal. The non-disclosure of the certificate and the documents the subject of the certificate was not relevant to the issues being determined in the review by the Tribunal. The non-disclosure of the certificate and the documents the subject of the certificate did not deprive the applicant of a fair hearing in circumstances where the documents are not credible, relevant or significant to the applicant’s claims. There was no denial of procedural fairness and no practical injustice to the applicant in the review process by reason of the non-disclosure in the circumstances of the present case.

2. Further, the Court is satisfied that the non-disclosure of the certificate and the documents the subject of the certificate in the present case could not possibly have impacted on the outcome of the review and accordingly, relief should be withheld if jurisdictional error is found to have occurred by reason of the non-disclosure. 

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  8 November 2017