Axy15 v Minister for Immigration
[2016] FCCA 574
•17 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXY15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 574 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal decision – Chinese citizen – whether evidence to support credibility findings – whether relevant considerations taken into account – whether Tribunal failed to disclose information relied upon to make decision – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c) Migration Act 1958 (Cth), ss.36(2)(a) and 36(2)(aa), 424A |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 MZZFW v Minister for Immigration [2015] FCCA 1902; (2015) 299 FLR 22 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 SZHZI v Minister for Immigration & Anor [2006] FMCA 662; (2006) 199 FLR 475 SZHZI v Minister for Immigration & Multicultural Affairs [2006] FCA 1067 SZHZI v Minister for Immigration & Multicultural Affairs & Anor [2007] HCATrans 220 SZVXW v Minister for Immigration & Anor [2016] FCCA 450 WZATK v Minister for Immigration & Anor [2014] FCCA 1344 |
| Applicant: | AXY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 238 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 15 March 2016 |
| Date of Last Submission: | 15 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 17 March 2016 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr P Corbould |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS (made on 15 March 2016)
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $6825 by 29 March 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 238 of 2015
| AXY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Non-appearance of applicant and orders made
When this matter came on for hearing on 15 March 2016 the applicant did not appear. The matter was called outside the court room. The applicant still did not appear. The Court is satisfied that the applicant was advised in writing of the hearing dates contained on the Registrar’s orders of 19 August 2015, those orders having been posted to the applicant at his address for service on 21 August 2015. Further, Counsel for the first respondent, the Minister for Immigration & Border Protection (“Minister”) advised the Court that they had written separately to the applicant on 9 February 2016 and 8 March 2016 reiterating that the application was listed for hearing on 15 March 2016. In the circumstances, the Court, moved to do so by Counsel for the Minister, determined that it was appropriate to determine the application rather than dismissing it for non-appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). The Court, having previously read the relevant papers, including the originating application, the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) and the submissions filed by the Minister (the applicant having filed no submissions) made orders dismissing the application and requiring the applicant to pay the Minister’s costs in the sum of $6825 by 29 March 2016.
The following are the Court’s Reasons for Judgment in relation to the orders made on 15 March 2016.
Introduction
The applicant seeks judicial review (“Judicial Review Application”) of a decision made by the Tribunal on 4 May 2015. The Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister on 13 June 2014 to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 105-115.
Factual and procedural background
The factual and procedural background is as follows:
a)on 19 December 2004 the applicant, a Chinese citizen, first arrived in Australia on a subclass 457 Business visa: CB 15, 49 and 50;
b)on 31 January 2005 the applicant applied for a protection visa which was refused by the Delegate on 13 April 2005 (“First Protection Visa Application”). The Delegate’s Decision was affirmed by the Tribunal on 24 November 2005: CB 49 and 50;
c)on 4 May 2006, the Federal Magistrates Court of Australia dismissed the applicant’s application to review the Tribunal Decision: SZHZI v Minister for Immigration & Anor [2006] FMCA 662; (2006) 199 FLR 475;
d)the applicant’s appeal from the judgment of the Federal Magistrates Court of Australia to the Federal Court of Australia was dismissed on 9 August 2006: SZHZI v Minister for Immigration & Multicultural Affairs [2006] FCA 1067;
e)the applicant’s application to the High Court of Australia for special leave to appeal the Federal Court’s judgment was refused on 23 May 2007: SZHZI v Minister for Immigration & Multicultural Affairs & Anor [2007] HCATrans 220;
f)on 30 August 2007 the applicant requested Ministerial intervention which was refused on 17 March 2008: CB 50;
g)on 17 October 2013 the applicant made another Protection Visa application (“Second Protection Visa Application”), being the application the subject of this Judicial Review Application. The Department of Immigration and Citizenship, now the Department of Immigration and Border Protection, (“Department”) accepted the Second Protection Visa Application as valid on the basis of the judgment of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 (“SZGIZ”): CB 1 and 50;
h)on 5 May 2014 the applicant attended an interview with the Delegate and on 13 June 2014 the Delegate decided to not grant the Second Protection Visa Application. The Delegate’s Decision considered the applicant’s claims against ss.36(2)(a) and 36(2)(aa) of the Migration Act: CB 49-62;
i)on 4 July 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 66. The applicant attended a hearing before the Tribunal on 30 April 2015 at which he gave evidence and presented arguments: CB 94 (“Tribunal Hearing”);
j)on 4 May 2015 the Tribunal Decision affirmed the Delegate’s Decision not to grant the Second Protection Visa Application. The Tribunal considered the applicant’s claims against the complementary protection provisions of the Migration Act only: CB 105-115; and
k)on 3 June 2015 the applicant lodged the Judicial Review Application for review of the Tribunal Decision with this Court.
On 19 August 2015 a Registrar of the Court listed the Judicial Review Application for hearing on 15 March 2016 and ordered, among other things, that the applicant file and serve:
a)any amended application and further affidavits by 14 October 2015; and
b)an outline of submissions not less than 42 days before the hearing.
The applicant did not file any amended application, further affidavits or submissions.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)stated the background to the Second Protection Visa Application, including the history of the First Protection Visa Application and the relevance of SZGIZ, and referred to relevant legal principles: CB 106-107at [1]-[7];
b)recorded the applicant’s claims in the Second Protection Visa Application, including that:
i)his father’s company paid a commission to army officials to secure a construction contract on Zhoushan Island;
ii)the applicant had been a manager during construction and was known to army officials;
iii)following a political conflict between ‘two cohorts’ the applicant was threatened by one cohort and told to report the rival cohort’s corrupt activity;
iv)when the applicant refused to do so the first cohort reported him to authorities;
v)an investigation into this matter was pending; and
vi)the “collusion of the authorities and the army officials” demonstrated that the applicant would not be protected if he returned to China: CB 107 at [9];
c)noted that the applicant made additional claims during his interview with the Delegate on 5 May 2014: CB 107 at [10], and recorded that:
i)following the interview with the Delegate, the applicant sent the Department a receipt for a loan from his wife to a “Ren Jie Chen” dated 3 August 2012: CB 108 at [11];
ii)following the Tribunal Hearing the applicant emailed the Tribunal a link to an online video: CB 108 at [13]; and
iii)in his email to the Tribunal the applicant stated that a man from his village had cheated the village of about 4 billion yuan and cheated the applicant, and that people who had loaned money to the applicant were coming to his house to take property away and were damaging his house and threatening his wife: CB 108 at [13];
d)recorded its finding that the applicant was not a truthful witness, and that the applicant had manufactured his claims to fear harm following the refusal of the First Protection Visa Application and his failed request for Ministerial intervention: CB 108 at [14];
e)assessed the applicant’s claims and evidence, having regard to the applicant’s written claims, his oral evidence to the Delegate and the Tribunal, the loan document, and his claims regarding the online video;
f)regarding the applicant’s:
i)claim to fear harm as a result of his Christianity, recorded that this was the sole basis for the First Protection Visa Application, that the applicant had not mentioned this claim in his Second Protection Visa Application, and that the applicant had raised this claim before the Delegate and, at the Tribunal’s prompting, before the Tribunal. The Tribunal found that the applicant was not a Christian, that he had never had any involvement with underground churches in China, and that his evidence and willingness to manufacture claims in this regard cast doubts on his credibility: CB 108-110 at [15]-[16];
ii)claims in respect of bribes paid to army officials, found that the applicant did not have any involvement in a construction project or the payment of bribes to obtain the contract. The Tribunal did not accept the applicant’s explanation of inconsistencies identified by the Tribunal, found the applicant’s evidence vague, inconsistent and unpersuasive, and concluded that the applicant had manufactured this claim following the refusal of the First Protection Visa Application: CB 109-111 at [17]-[20]; and
iii)claim to fear harm in relation to borrowed money in his village, recorded the applicant’s evidence that a 400 million yuan project had failed, and that money lent by his wife on behalf of people in his village was irrecoverable as a person had lied and taken their money. The applicant also claimed that he had invested in coal mining, but that his money was stuck due to government restrictions: CB 111 at [21]-[22]. The Tribunal accepted that a fraud had occurred in relation to a failed investment and had been reported on by a journalist, but did not accept the applicant’s claims that he or his wife had been involved. The Tribunal accepted that the applicant may have money tied up in a coal mining investment, but did not accept that “this has resulted in [the applicant] or his wife or family suffering harm”: CB 112-113 at [25];
g)ultimately did not accept any of the applicant’s claims, and found that “the applicant’s claims to fear harm were fabricated in his first application and that he has subsequently fabricated a further set of false claims to lodge a Protection Visa application based on the Complementary Protection provisions”: CB 113 at [26]; and
h)having considered all the evidence, found that the applicant did not satisfy the criterion in s.36(2)(aa) of the Migration Act: CB 113 at [27].
Judicial Review Application grounds
The application for review contains the following three grounds:
1. The decision by the Tribunal is of no supporting evidence
Particulars:
In paragraph 25, the Tribunal says that “the Tribunal does not accept that it is credible that the applicant’s wife would be entrusted with several other villagers’ money, rather than the villagers investing it themselves.”
2. The Tribunal takes into relevant consideration into account Particulars:
In paragraph 25, the Tribunal accepts the applicant may have money tied up in coal mining investment, but does not accept that this has resulted in him or his wife or family suffering harm.
The Tribunal did not consider the “money tied up in coal mining investment” led to the applicant in failing to make repayment to the creditors to inflict significant harm to the applicant and his family.
3. The Tribunal fails to disclose information the Tribunal relied upon to make its decision.
Particulars:
At paragraph 23, “there is considerable documentation fraud in China” in respect of the applicant provided an IOU.
Jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
Ground 1 constitutes no more than a plea for merits review of the Tribunal Decision. This Court has no jurisdiction to engage in merits review. Fact finding, including the making of credibility findings, is within the jurisdiction of the Tribunal and not this Court: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ. A court reviewing a decision upon refugee status must be astute not to cross the line between judicial review and merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Cummow JJ; WZATK v Minister for Immigration & Anor [2014] FCCA 1344 at [28] per Judge Lucev.
The Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; MZZFW v Minister for Immigration [2015] FCCA 1902; (2015) 299 FLR 22 at [12] per Judge Lucev. The Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ (“Kopalapillai”). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J; SZVXW v Minister for Immigration & Anor [2016] FCCA 450 at [45] per Judge Emmett (“SZVXW”).
It was therefore open to the Tribunal to not accept as credible the applicant’s evidence that his wife would be entrusted with several other villagers’ money, rather than the villagers investing it themselves. There was nothing inherently illogical or irrational in the Tribunal’s reasoning, and its credibility finding, was rationally based, upon matters logically probative of the issue of credibility: SZVXW at [46] per Judge Emmett (citing Kopalapillai).
In any event, the Tribunal’s view that the applicant’s evidence was not credible was only one of several alternative bases for rejecting the applicant’s claim of involvement in a failed investment and related fraud. The other alternative bases included:
a)the applicant’s failure to provide, and the Tribunal’s inability to locate, any further information supporting the applicant’s claim;
b)the vague and unpersuasive nature of the applicant’s evidence;
c)the implausibility of the applicant or his wife in not knowing the nature of the relevant investment; and
d)the Tribunal’s finding that the applicant was not a truthful witness and had manufactured further claims in an attempt to provide a basis for the Second Protection Visa Application: CB 113 at [24]-[25].
Disregarding the Tribunal’s view that the applicant’s evidence was not credible, there was ample justification for the Tribunal’s rejection of the applicant’s claim.
Ground 1 is therefore not made out, and no jurisdictional error is established.
Ground 2
Ground 2 appears to be an allegation that the Tribunal either took into account irrelevant material, or failed to take into account relevant material. The particulars to ground 2 suggest, however, that the applicant is attacking the merits of the Tribunal Decision in accepting that the applicant may have had money tied up in a coal mining investment, but not accepting that this resulted in the applicant or his family suffering harm: CB 113 at [25].
The Tribunal did not fail to consider the applicant’s coal mining investment. Further, as this claim was put forward by the applicant, this is not a case of the Tribunal considering irrelevant material.
Regarding the second aspect of the particulars to this ground, the Tribunal did not accept that the applicant’s IOU document was genuine, and found that the applicant had not been involved in the failed investment as claimed, for the reasons set out at CB 113 at [25]. Having found that the applicant was not involved in the failed investment, the Tribunal was not required to consider whether the applicant having ‘money tied up in coal mining investment’ led to significant harm due to him or his wife being unable to repay investors. The Tribunal’s finding that the applicant and his family had not suffered harm as a result of government regulation of coal mining investment was justified on this basis.
Ground 2 is therefore not made out, and no jurisdictional error is established.
Ground 3
Ground 3 appears to allege that the Tribunal should have put country information to the applicant in support of its comment at CB 112 at [23] that “there is considerable documentation fraud in China”.
The source of any obligation of this kind is s.424A of the Migration Act which requires the Tribunal to give to the applicant information that the Tribunal considers would be the reason, or a part of the reason, for affirming the Delegate’s Decision. However, s.424A(3)(a) of the Migration Act provides that this requirement does not apply to information that is not specifically about the applicant. The Tribunal was therefore not required to put to the applicant information in support of its comment at CB 112 at [23].
In any event, the Tribunal did not reject the applicant’s IOU document because there was considerable documentation fraud in China. The Tribunal did not accept that the IOU document was genuine because it had rejected the applicant’s claims of involvement in the failed investment and related fraud. The Tribunal’s comment at the hearing that “there is considerable documentation fraud in China”: CB 112 at [23], was not information that the Tribunal considered would be the reason, or a part of the reason, for affirming the Delegate’s Decision.
Ground 3 is therefore not made out, and no jurisdictional error is established.
Conclusion
Essentially for the reasons submitted by the Minister, the Court has concluded that there is no jurisdictional error in the Tribunal Decision, and that the Judicial Review Application must therefore be dismissed, with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 17 March 2016
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