AXO15 v Minister for Immigration
[2017] FCCA 1918
•14 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXO15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1918 |
| Catchwords: MIGRATION – Application for a Constitutional writ – no error by Tribunal – no error by reason of non-disclosure of s 438 certificate – if relevant error relief refused on discretionary grounds – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 |
| Applicant: | AXO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2476 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 14 August 2017 |
| Date of Last Submission: | 14 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondent: | Mr J Pinder Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,200.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2476 of 2016
| AXO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a Constitutional writ within 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 made on 23 August 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.
The applicant was found to be a citizen of China and arrived in Australia on 18 September 1997 on a false Taiwanese passport. The applicant applied for protection on 4 August 1998. That application was refused by a delegate on 29 October 1998 and that decision was affirmed by a Tribunal on 25 August 1999. The applicant then remained unlawfully in Australia until he was detained by Immigration authorities in 2013. The applicant then lodged a second application for protection on the grounds of complementary protection consistent with a decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
On 28 April 2014, the applicant was interviewed by the Department in relation to the second application and a delegate refused to grant the visa on 9 May 2014. A differently constituted Tribunal affirmed the delegate’s decision on 8 May 2015. On 17 November 2015, by consent, this Court made orders remitting the matter to a differently constituted Tribunal for reconsideration.
The current Tribunal’s decision
The applicant was invited to attend a hearing before the current Tribunal by letter sent on 30 May 2016 inviting the applicant to appear on 25 July 2016. The applicant was also sent a form in relation to response to hearing, which the applicant completed and returned. No request to take evidence from any witness was identified in that form. The applicant appeared on the hearing date to give evidence and present arguments, and the hearing record identifies that the hearing took place from 10:35am until 1:00pm.
The Tribunal identified the applicant’s background and the applicant’s claim to fear harm as a member of an anti-government group in China, and by reason of having been detained by the authorities, and as a result of the authorities regularly visiting his home and threatening his family. The applicant also claimed to fear harm by reason of being a following believer of Yi Guan Dao, being a banned religious sect, as well as protesting against family planning policy.
The Tribunal identified the applicant’s protection visa background. The Tribunal correctly identified the relevant law. The Tribunal set out the applicant’s claims and evidence, as well as what occurred at the hearing before the differently constituted Tribunal on 30 April 2015 and before the current Tribunal on 25 July 2016.
The Tribunal found the applicant is not genuinely interested in or a genuine practitioner of Yi Guan Dao or that he has been involved in a protest against family planning in China or involved in anti-government organisation or departed illegally. The Tribunal did not accept the applicant was detained on any occasion by the police or security guards in China for any reasons the applicant claimed, or that the applicant was of any adverse interest to the authorities or anyone else at the time of his departure for reasons he claimed. The Tribunal found the applicant’s testimony inconsistent, vague and lacking in detail and provided detailed reasons in support of those adverse credibility findings that the applicant was not a witness of truth.
In relation to the anti-government organisation alleged activities by the applicant, the Tribunal found the applicant’s evidence had been vague as to beliefs, aims and ideology of the group, despite claiming to have been involved for over a year and being a key member undertaking publicity for the group and convincing others to join and attend meetings and protests. The Tribunal found the applicant had provided inconsistent evidence as to the number of members in the anti-government group and how many were involved in the protests. The Tribunal found the applicant had provided inconsistent evidence as to how often he protested with the group and where the protests took place.
The Tribunal found the applicant’s claim of being detained as a result of being involved in anti-government organisations was inconsistent in relation to the evidence as to who detained him in 1997. The Tribunal found that the applicant also provided inconsistent evidence as to the subsequent police interest and whether he and his wife provided the names of anybody involved in the organisation. The Tribunal was not satisfied the applicant is a credible witness as to ever been involved in any anti-government organisation, participating in protests or meetings and being detained as a result.
The Tribunal also took into account the applicant’s claim that he illegally departed China and raised concerns in relation to the applicant’s inconsistencies and identified that the applicant’s response did not explain the inconsistencies in his evidence. The Tribunal regarded the applicant’s changing evidence as to whether he departed China on a false passport, by plane or through a tunnel to be significant. This added to the Tribunal’s finding the applicant was not a credible witness.
The Tribunal also referred to the applicant’s claims concerning family planning protests. The Tribunal observed that the applicant did not mention this fear in his original application in 1998 and in his application in November 2013. The Tribunal raised this issue with the applicant and did not accept the applicant’s response as satisfactory and found that that added to the applicant’s lack of credibility. The Tribunal also raised the absence of the applicant raising such a fear and gave the applicant opportunity to respond.
In relation to Yi Guan Dao, the Tribunal observed that this was a new claim that the applicant had raised before the Tribunal, fearing harm as being a member of a religious sect that was banned in China. The Tribunal found the applicant’s testimony in that regard to be a fabrication and provided detailed reasons in support. The Tribunal found that, despite the applicant claiming to have been practising at his home every day from February 2014 until he was formally welcomed into the group on 2 December 2015 in Campsie, he did not raise or refer to a fear of return as being a practitioner of Yi Guan Dao at the Department interview on 28 April 2014 or before the differently constituted Tribunal on 30 April 2015. The Tribunal also observed that the applicant was asked on numerous occasions why he feared returning to China at the hearing before the Tribunal and that the applicant did not raise his practice of Yi Guan Dao.
Having considered the applicant’s claims and evidence cumulatively, the Tribunal found the applicant is not a credible, truthful or reliable witness. The Tribunal was of the view that the applicant had fabricated claims and concocted evidence to achieve an immigration outcome. The Tribunal did not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness in relation to his claims.
The Tribunal took into account the evidence provided by the applicant in relation to photographs of him attending a temple, baptism certificate, photos of a temple and evidence of donations at the temple in Campsie however, as a result of the applicant’s lack of credibility, the Tribunal found the attendance and practice, including the baptism, was done for the purpose of enhancing the strength of the current application. The Tribunal found that the documents were not indicative of the applicant being a genuine practitioner or having a genuine belief in Yi Guan Dao. The Tribunal was not satisfied the applicant would participate in Yi Guan Dao activities in any way on return or suffer persecution from being prevented from being involved in or being prevented from choosing his religion and beliefs.
The Tribunal did not accept that at the time the applicant departed China in 1997 he held any concerns for his safety for the reasons he claimed or was of any interest to the Chinese authorities or had a record with them or was considered to be opposed to the Chinese Government for any reason claimed by the applicant. The Tribunal did not accept that the applicant’s freedom would be deprived or that he would be arrested on return or that he and his family will suffer inhumane persecution and imprisonment if he returns to China or that he will be captured and tortured or that he will face persecution and possible death on return.
The Tribunal did not accept the applicant would be physically harmed, arrested, detained, deprived of his liberty, killed, threatened, tortured, suffer injury, be abducted, beaten, interrogated, disrespected, shamed, punished, humiliated or face any difficulties he claims for the reasons he claims, if he returns to China at the hands of the authorities, government or police or anyone else for the reasons the applicant claims. The Tribunal rejected the applicant’s claims in their entirety.
Based on the applicant’s lack of credibility, the Tribunal was not satisfied there is a real risk the applicant will suffer significant harm on return to China at the hands of the authorities, the government, the law, the agents of the government or anyone else due to the applicant’s departing illegally, including bribing the Customs Officer or using a false passport or escaping through a tunnel or any other claims the applicant has made with regard to his departing illegally.
The Tribunal made adverse credibility findings in relation to the whole of the applicant’s claims. The Tribunal was not satisfied the applicant would be of adverse interest to the Chinese authorities on his return because of the limited nature and extent of his involvement in Yi Guan Dao-related activities and events in Australia and due to his behaviour on return to China in not practicing Yi Guan Dao.
The Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will suffer significant harm because of his attendance at the Yi Guan Dao temple, attendance at services at the Yi Guan Dao temple, baptism in the Yi Guan Dao temple, providing donations to the Yi Guan Dao temple or to practicing Yi Guan Dao in Australia.
The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk the applicant will suffer significant harm as defined in s 36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate.
Before this Court
At the commencement of the hearing, the Court identified the evidence that had been received in relation to that determination and 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. 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 unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the decision was unlawful or unfair, the applicant’s application would be dismissed with costs.
The Court explained to the applicant that it would 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.
The Court also confirmed with the applicant that he had read to him the submissions of the first respondent. The Court explained that those submissions explained why the first respondent submitted that there is no relevant legal error by the Tribunal and why the grounds in the applicant’s application failed to make out any relevant legal error.
Applicant’s submissions from the bar table
From the bar table, the applicant took issue with the adverse finding by the Tribunal in relation to his practice of Yi Guan Dao. The applicant suggested that the Tribunal had determined his claim in relation to his practice of religion by reference to whether or not he knew the address of the temple at Campsie. The Tribunal’s reasons do not support any such reasoning by the Tribunal and the Tribunal’s reasons do not suggest the Tribunal purported to engage in being an arbiter of doctrine of faith. The Tribunal re-provided reasons in relation to its adverse credibility findings in respect of the applicant’s claims, including the applicant’s delay in raising the claim of his practice of Yi Guan Dao. Those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.
From the bar table, the applicant complained that the Tribunal failed to call witnesses. The applicant completed a response to hearing but did not identify any witness as being required by the applicant to be called. The applicant also suggested from the bar table that he provided evidence in support of his practice of religion that had not been taken into account by the Tribunal. It is apparent from the Tribunal’s reasons that the Tribunal took into account the material provided by the applicant but that that material didn’t overcome the adverse credibility concerns that were open to the Tribunal in the present case. The applicant also submitted from the bar table that the Tribunal’s hearing was very short. The record of hearing identifies a timeframe from 10:35am until 1:00pm. The Tribunal’s reasons summarise what occurred during the hearing on 25 July 2016.
On the face of the material before the Court, the applicant had a genuine and meaningful hearing before the Tribunal. In substance, the applicant’s submissions from the bar table are an invitation for the Court to engage in an impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal.
On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the Tribunal complied with its obligations for procedural fairness in the conduct of the review.
Consideration of the application
In the application under orders sought, appear the following paragraphs:
1. I don't think the decision made by DIBP and RRT to my application for a protection is fair enough because my religious risk from Yi Guan Dao (Tao) which is banned as illegal and cult has not been thoroughly considered
2. AAT also failed to consider my commitment, real practice and active involvement, especially the massive evidences proved in pursuing Tao after I arrived in Australia.
3. AAT's judgment on my credit is groundless and it does affect my indignity, faith and integrity as a whole.
4. AAT's decision on my faith of Yi Guan Tao is reckless, giving me no fair chance to demonstrate my understanding and knowledge in faith and my daily practice.
5. AAT shown a bias attitude towards my background and making no more consideration on my explanation to the various questions raised in hearing.
6. I don't accept the assessment made by the tribunal due to the concern about my credibility and inconsistency as I have given my best effort in the hearing. I couldn't understand why I was unable to given a chance off hearing to make comment on the outstanding issues given by the tribunal member. I was awaiting many years and expecting the hearing for making testimony.
7. AAT fail to consider the fact that I have been living in Australia since 1997 and my faith and practice on Yi Guan Dao in Australia is more critical and weighed than any other claims made in my previous application. I will be life challenged if I was forced to return to China.
8. I truly believe tribunal ignored the harsh fact that religious repression and persecution are undergoing in China. It is harsh reality that the Chinese government gives no real religious freedom to the adherents of Yi Guan Dao pursuers, oppression and persecution on Tao adherents stopped.
Paragraph 1 of Relief
Paragraph 1 of the orders sought reflects a disagreement with the adverse credibility findings made by the Tribunal. The credibility of the applicant was a matter for the Tribunal to determine. The Tribunal clearly considered the applicant’s claim and made dispositive findings for logical and rational reasons. No jurisdictional error is made out by paragraph 1 of the orders sought.
Paragraph 2 of Relief
The Tribunal correctly identified the applicant’s claims including the applicant’s activities in Australia and the adverse findings were open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error is made out by paragraph 2 of the orders sought.
Paragraph 3 of Relief
Paragraph 3 of the orders sought reflects a disagreement with the adverse credibility findings. The Tribunal provided cogent, logical and reasonable reasons in support of the adverse credibility findings. No jurisdictional error is made out by paragraph 3 of the orders sought.
Paragraph 4 of Relief
In relation to paragraph 4, this in substance, reflects a disagreement with the adverse credibility finding. It is apparent on the material before the Court, that the applicant was given an opportunity to advance the applicant’s claims and evidence and that the Tribunal raised with the applicant its concern in relation to the applicant’s alleged practice of Yi Guan Dao. No jurisdictional error is made out by paragraph 4 of the orders sought.
Paragraph 5 of Relief
In relation to ground 5, the asking of questions by the Tribunal and the adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. It was relevant for the Tribunal to determine the applicant’s credit. No jurisdictional error is made out by paragraph 5 of the orders sought.
Paragraph 6 of Relief
Ground 6 reflects a disagreement with the adverse findings by the Tribunal and on the material before the Court, the applicant had a real and meaningful hearing. No jurisdictional error is made out by paragraph 6 of the orders sought.
Paragraph 7 of Relief
In relation to paragraph 7, this reflects a disagreement with the adverse credibility findings by the Tribunal. It does not identify any jurisdictional error. The duration of the period during which the applicant has remained unlawfully in Australia is not a matter that the Tribunal had to take into account for the benefit of the applicant, and the Tribunal in the present case did not determine the applicant’s credit on the basis of delay in the current application, which is what gave rise to the error by the differently constituted Tribunal. No jurisdictional error is made out by paragraph 7 of the orders sought.
Paragraph 8 of relief
In relation to paragraph 8, it is clear the Tribunal correctly identified the applicant’s claims and made adverse findings that were open to the Tribunal. No jurisdictional error is made out by paragraph 8 of the orders sought.
The grounds of the application have the following paragraphs:
1. I am Chinese national, having faith and commitment of Yi Guan Dao (Tao) which is outlawed in China.
2. I have been involved in practicing TAO after arrived in Australia. I firmly believe my faith played a unique role in my daily life and become a pillar in my spiritual life.
3. My life filled in tough and hard experience. I regarded them as my good witness of my faith and commitment on Lord.
4. As committed Tao pursuer, I have fear to be persecuted or mistreated by government authority if I was forced to return as my faith remains banned by law in China and the situation never improve a better off.
5. I have long been integrated in Australian society and wish for a protection by Australian government for I wish to do my contribution to this country.
The five paragraphs in the grounds of the application, in substance, identify the applicant’s claims and do not identify any jurisdictional error. This Court has no power to grant relief on compassionate grounds or to make fresh findings as to the merits of the applicant’s claims. Paragraphs 1 to 5 of the grounds do not establish any error by the Tribunal.
Section 438 certificate
The minister as a model litigant drew attention to a s 438 certificate dated 7 December 2015, accepted the same was invalid and tendered the documents the subject of the certificate. The documents were clearly irrelevant to the issues in the review and did not constitute relevant, credible and significant material that as a matter of procedural fairness required disclosure in the review process or which, by reason of the failure to disclose, there was any jurisdictional error.
Further the Court is satisfied that the non-disclosure of the certificate and the documents the subject of the certificate could not possibly give rise to a different outcome in the review and accordingly if there was any error, relief should be withheld on discretionary grounds.
Conclusion
No jurisdictional error is made out by the application. The application is dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 26 October 2017