AXT16 v Minister for Immigration

[2019] FCCA 2730

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXT16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2730

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration not to grant to her a Protection visa – applicant claimed to fear harm from money lenders, contractors and the authorities in China – applicant claimed lacked of procedural fairness and failure to consider her claims against the Refugees Convention criterion – Administrative Appeals Tribunal made adverse credibility findings – no procedural unfairness and Administrative Appeals Tribunal bound in the circumstances not to consider the Refugees Convention criterion but only the complementary protection criterion – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48A, 438

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
BTU18 v Minister for Home Affairs [2019] FCA 540
Minister for Immigration and Border Protection v SZMTA& Another (2019) 363 ALR 599
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

Applicant: AXT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 959 of 2016

Judgment of: Judge Dowdy

Hearing date: 10 September 2019

Delivered at: Sydney

Delivered on: 10 September 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms K. Evans

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 21 April 2016 is dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding in the sum of $5,000.

3. The name of the First Respondent be amended from ‘Minister of Immigration and Border Protection’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

4. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 23 October 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 959 of 2016

AXT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a female citizen of China aged 56 years, having been born on 10 March 1963. 

2. By Application filed in this Court on 21 April 2016 she seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 1 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 July 2014 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

1. The Applicant entered Australia on 18 April 2007 as the holder of a Student Guardian (Class TU) (Subclass 580) visa with her daughter who intended to study in Australia.  On 10 July 2009 the Applicant applied for a Protection visa (first Protection visa application) on the basis that she feared harm if she returned to China because her family had joined a Christian church in 1978. She claimed to fear persecution from the Chinese authorities due to her involvement with the local church and the application to her of the one child policy in China.

2. A Delegate refused the first Protection visa application on 2 November 2009 and on a merits review the Refugee Review Tribunal (RRT) affirmed that decision. She then applied for judicial review of the RRT decision in this Court, which review was dismissed by his Honour Judge Nicholls and on appeal from his decision was dismissed by his Honour Rares J sitting as the Full Court of the Federal Court of Australia on 25 November 2010.

3. She then made a request in March 2011 for Ministerial Intervention which was unsuccessful and then remained in Australia as an unlawful non-citizen for three years. On 24 March 2012 the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) was introduced and on 3 July 2013 the Full Court of the Federal Court in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) held that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugee’s Convention grounds.

4. Thus it was that the Applicant lodged a second application for a Protection visa 28 January 2014 (present Protection visa application), being the subject of this proceeding.

Claims for Protection

1. The Applicant’s claims for protection were, in substance, as follows:

   a)she has been intimidated by moneylenders and contractors who are connected with the authorities and gangsters and the authorities have colluded with the moneylenders and contractors. She has also been threatened by her ex-husband’s workers for unpaid wages arising from her husband’s contract to level land for a new development site;

   b)her husband sustained multiple stabbing injuries from moneylenders and was hospitalised for months. Although he reported the matter to the police, they did not take any action against the perpetrators. He was warned by the perpetrators not to do anything against them or he would not be so lucky next time;

   c)if she returns to China she will be harmed by the moneylenders and the ex-workers will want the money owed to them; and

   d)if she continues to practice her religion of being a Shouter in China the perpetrators and their associates will make a big issue of it and will persecute her.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 16 April 2014.

2. The Delegate only had jurisdiction to consider the present Protection visa application under the complementary protection criterion: see Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). In the result the Delegate considered the present Protection visa application under both the Refugees Convention criterion and the complementary protection criterion. The Delegate, under the heading of “Events leading to the applicant’s departure from China”, summarised her claims as follows: 

   ·    The applicant’s ex-husband owned and operated a fleet of three forklifts and was regularly subcontracted to work on construction sites;

   ·    Sometime in 2003, 2004 or possibly in 2006 the applicant’s husband was subcontracted for ground-levelling work on the Puchen Town Business Park construction project. The applicant’s husband sub-contracted further forklift drivers to carry out this work;

   ·    8 or 9 months after the project commenced the Puchen Town Business Park developers fell behind on their payments to the applicant’s husband. The applicant’s husband approached the Jiang Xia Village Shabu Town Trustee Guarantee Company for a loan of 3 million Yuan to cover expenses they had incurred as part of the project, and to pay the subcontractors they had engaged. The applicant’s husband provided their property certificate and the machinery they owned as security for the loan. The applicant’s signature, as well as her husband’s, was on the loan agreement;

   ·    At the conclusion of the Puchen Town Business Park construction project the developers failed to pay the applicant’s husband, and in turn they were unable to finance the loan they had obtained from the Jiang Xia Village Shabu Town Trustee Guarantee Company;

   ·    After the applicant’s husband started to fall behind on his repayments of the loan, three individuals from the money lending company, A, B and C began pursuing the applicant and her husband;

   ·    They attended the construction site on several occasions, asking or the money and threatening to take away their machinery. They stated that even if they did take away the machinery, this would not be enough to cover the debt;

   ·    They began attending the home of the applicant and her family, as this was very close to the construction site. They warned the applicant and her husband that they should pay their money back, and they beat the applicant to the point of giving her cracked teeth, severe bruising, and concussion. The applicant’s husband was also beaten, and was hospitalised for months following this incident.

3. However, the Delegate concluded that the Applicant had fabricated these claims for the purpose of applying for protection and all of them were rejected because, in short:

   a)they had never previously been mentioned during the course of the first Protection visa application;

   b)there were factual inconsistencies and discrepancies between matters asserted in the first Protection visa application and the present Protection visa application; and

   c)at the interview with the Delegate, the Applicant’s account of events appeared to be given in a scripted manner with improvisation and embellishment.

4. Accordingly the Delegate refused to grant the Protection visa to the Applicant.

Decision of Tribunal

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 28 May 2014 and gave a copy of the Decision Record of the Delegate to the Tribunal at that time. The Applicant appeared before the Tribunal at three separate hearings on 31 March 2015, 30 June 2015 and 1 April 2016 to give evidence and present arguments.

2. The Tribunal recognised correctly that it only had jurisdiction to consider the applicability of the complementary protection criterion to the Applicant’s claims.

3. At [4] – [14] of its Decision Record the Tribunal set out the relevant law.  At [18] it summarised the Applicant’s claims and from [19] – [26] it recorded its discussion with the Applicant of her claims at the three separate hearings before the Tribunal.

4. From [27] – [32] of its Decision Record the Tribunal recorded the claims as made by the Applicant in connection with her first Protection visa application and in her application for Ministerial Intervention. 

5. Then from [33] – [86] of its Decision Record the Tribunal recorded its consideration of the credibility of the Applicant’s claims under five separate headings, or sections. The adverse credibility findings in these sections are wide-ranging and extensive, appear to have been legally reasonable and open to the Tribunal to make and are not irrational or lacking in an intelligible justification. For example, the third section is introduced at [41] in the following terms:

   [41] Third, [the Applicant] has provided inconsistent and unpersuasive evidence as well as implausible explanations to the Department, the RRT, the Minister’s office and the Tribunal such that it raises serious doubts about the truthfulness of her claims. Details of evidence provided to the Department, the RRT and the Minister’s office in relation to [the Applicant’s] first application for protection are set out in the Delegate’s Letter. The inconsistent evidence provided by [the Applicant] ranges from her marital status in China, when and why she first applied for her passport, where she lived in China, her occupation, the length of time that she claims her ex-husband was hospitalised following injuries sustained by moneylenders to the changes in her claims over time. The Tribunal accepts that applicants appearing before it may have the incomplete memories of some aspects of their personal life, especially in circumstances where the events occurred sometime ago. However, the range of topics affected by [the Applicant’s] inconsistent evidence raises serious doubts in the mind of the Tribunal regarding the truthfulness of any of [the Applicant’s] claims…

6. Then from [42] – [62] of its Decision Record the Tribunal sets out in more detail the inconsistencies which it considered justified its conclusion at [41]. At [49] the following was recorded:

   [49] At the Tribunal’s hearing on 30 June 2015 [the Applicant] admitted she had misled the Tribunal at the hearing on 31 March 2015. Her changing evidence to the Tribunal raises very serious doubts in the mind of the Tribunal regarding her credibility.

7. The inconsistencies, unpersuasive evidence and implausible explanations found by the Tribunal related to her evidence about:

   a)when the Applicant married and when she divorced;

   b)her family structure;

   c)her occupation;

   d)where she lived in China;

   e)her knowledge about her ex-husband’s business activities and the financial status of his business in China;  and

   f)the time her ex-husband spent in hospital following injuries he sustained from money lenders.

8. From [63] – [73] of its Decision Record the Tribunal considered what it regarded as implausible explanations to the Tribunal in relation to the quantum of the loan she claimed to have been made by loan sharks to her ex-husband in China. At [73] the Tribunal concluded that a Loan Agreement which had been submitted by the Applicant’s migration agent and said to have been between her husband in China as borrower and a Foundation as lender was a fraudulent document, based on enquiries in China made with her consent on the Tribunal’s behalf by the Australian Embassy in Beijing.

9. At [81] of its Decision Record the Tribunal found that the Applicant did not have even a rudimentary understanding of the Christian religion and had not been a Shouter in China.

10. Then from [82] – [83] of its Decision Record the Tribunal rejected the Applicant’s claims that she would have no way to survive in China, could not find work there and would starve to death. Further, from [84] – [86] the Tribunal took into account the two-year delay in the Applicant’s application for a Protection visa, she having arrived in Australia in April 2007 but not lodging her first Protection visa application until July 2009, and concluded at [86] as follows:

    [86] The Tribunal accepts that there may be good reasons for Protection visa applicants to delay lodgement of their application and that such a delay does not preclude the existence of substantial grounds for the Tribunal to believe that there is a real risk of significant harm if the applicant is returned, in this case, to China. However, the Tribunal considers [the Applicant’s] 2 year delay in making her first application for protection raises doubts regarding the truthfulness of her claims of fearing harm because of her husband’s business debts or because she is a Shouter. If the claimed events had really occurred (and, for the reasons outlined above the Tribunal does not accept [the Applicant’s] husband’s business incurred the debts claimed, that creditors and ex-workers of her husband or his business will harm her, or that she was a Shouter in China), the Tribunal does not accept she would have delayed making her first Protection visa application for 2 years.

11. At [87] of its Decision Record the Tribunal concluded that:

    [87] When considered cumulatively, the Tribunal finds the concerns outlined above so significant that is not satisfied [the Applicant] has been truthful in her claims. While the matters of concern outlined above are not singularly determinative, they nonetheless cumulatively leave the Tribunal unable to be satisfied of the truth of central aspects of [the Applicant’s] claims. It appears to the Tribunal that [the Applicant] has demonstrated a willingness to consistently provide false, or misleading, information to the Department, the RRT, the Minister’s office and the Tribunal. Further, she showed a tendency to tailor and alter her evidence in response to the Tribunal’s questions. The Tribunal accept that, using [the Applicant’s] own words, she had to ‘come up with new claims’ because ‘they didn’t buy’ her old ones. The Tribunal is not satisfied she is a credible witness in relation to the core aspects of her claims, apart from her claim that her husband ran a business levelling land.

12. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relies on three Grounds, being:

   1. The Tribunal failed to afford procedural fairness.

   2. The Tribunal failed to disclose the information in support of its findings.

   3. The Tribunal failed to consider the applicant’s all claims, namely, the Tribunal only considered the effect of complementary protection criteria.

Consideration

Ground 1

1. This claim of failure to afford procedural fairness is entirely unparticularised and generalised.  In my view there is not a skerrick of evidence to establish that procedural fairness was not afforded to the Applicant. She was afforded three separate hearings and had investigations of her claims carried out at the Tribunal’s behest by the Australian Embassy in Beijing. The terms of the Decision Record itself indicate that the Tribunal carefully and meaningfully gave consideration to the Applicant’s claims. She does not tender any transcript of any of the hearings before the Tribunal, notwithstanding that by consent order of 20 May 2016 in this Court she accepted the onus of obtaining such a transcript if she wished to rely on one.

2. I record that the Minister, as a model litigant, has disclosed that on 15 April 2015 the Delegate had issued a certificate purportedly pursuant to s.438 of the Act (s.438 certificate), on the basis that the disclosure of the documents covered by the certificate would be contrary to the public interest. The Minister concedes that the s.438 certificate is invalid and has put into evidence the two documents the subject of the certificate, which I have examined. Those documents are completely irrelevant to the Applicant’s claims. They were not mentioned by the Tribunal in its Decision Record and it is inconceivable that the Tribunal had any regard to them in coming to its decision.

1. The failure to disclose to the Applicant the existence of the s.438 certificate has not given rise to any jurisdictional error because there has been no practical injustice suffered by the Applicant, let alone practical injustice which was material to the decision of the Tribunal: Minister for Immigration and Border Protection v SZMTA& Another (2019) 363 ALR 599 at 610 [38].

2. Accordingly it follows that Ground 1 is not made out.

Ground 2

1. This Ground fails to particularise “the information in support of [the Tribunal’s] findings” which it is alleged it “failed to disclose”. Nothing has been identified in relation to Ground 2 at the hearing before me by the Applicant. It suffices to say that the Tribunal in its Decision Record has in truth referred to a large body of evidence, which it appears to have fully disclosed and discussed with the Applicant at the three Tribunal hearings. Otherwise, the Tribunal is not required to give an applicant a running commentary on its thought processes. As was said in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165 – 166 [47] – [48], by the High Court comprised of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ:

   [47]… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor…

   [48]Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry:

   “the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.  If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

   Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

2. More recently, Wigney J in BTU18 v Minister for Home Affairs [2019] FCA 540 at [53] said as follows:

   [53]Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Cmr for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).

3. In my view, Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 3

1. This Ground complains that the Tribunal failed to consider the claims of the Applicant under the Refugees Convention criterion. However, the Tribunal was bound to only consider the Applicant’s claims under the complementary protection criterion by reason of the decision of the Full Court of the Federal Court in SZVCH, which had the effect relevantly here that the Delegate should not have considered the Applicant’s claims under the Refugees Convention criterion and the Tribunal was not entitled to consider the Refugees Convention criterion on merits review, even though the Delegate had done so. As Mortimer J said in SZVCH at 398 – 399 [113] – [114]:

   [113] The consequence is that for the delegate to consider the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) was to exceed the jurisdiction conferred on the delegate by s 65 of the Act. To put it another way, the statutory task of the delegate under s 65 did not include consideration of the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) of the Act. Insofar as the Federal Circuit Court concluded the delegate had such jurisdiction (whether as a matter of election, discretion or however it might be described), that conclusion was incorrect.

   [114] When the matter came before the Tribunal, the effect of the terms of ss 414 and 415 of the Act was that the Tribunal was required to review the decision of the delegate, in the manner described by French CJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10]. However, like the delegate, its duty under s 65 was circumscribed by the limited validity of the further protection visa application. For it too, to consider the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) would have been to exceed the jurisdiction conferred on it in the circumstances by s 65 of the Act. To put it another way, the statutory task of the Tribunal under s 65 did not include any review of the delegate’s assessment of the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) of the Act. The Tribunal was correct in the way it approached the limits of its jurisdiction, and the Federal Circuit Court was incorrect to set aside its decision.

2. Ground 3 fails to establish jurisdictional error.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. Accordingly the Application to this Court is to be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  25 September 2019