Ayj16 v Minister for Immigration
[2018] FCCA 2514
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYJ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2514 |
| Catchwords: MIGRATION – Application for judicial review – extension of time – undue delay – Protection (Class XA) Visa – whether the Tribunal took into account irrelevant considerations – whether Tribunal failed to exercise jurisdiction – whether the Tribunal unreasonably exercised discretion – no error by the Tribunal – application for extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.426, 426(2), 426(3), 427(1)(a), 429A, 477(2)(b) |
| Cases cited: CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 Minister for Immigration and Citizenship v Li [2013] HCA 18 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 |
| First Applicant: | AYJ16 |
| Second Applicant: | AYK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 833 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 27 April 2018 |
| Date of Last Submission: | 27 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | M. Keneally |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the Respondents: | A. Yuile |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed 29 March 2016 be dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 833 of 2016
| AYJ16 |
First Applicant
| AYK16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court by way of an amended application filed 29 March 2016. The application seeks an extension of time for judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) affirming the decision of a delegate of the Second Respondent to deny the First Respondent a Protection (Class XA) Visa (‘Visa’).
Background
The First and Second Applicant are Chinese citizens who are aged 79 and 78 respectively.[1]
[1] Court Book 10.
On 23 November 2011, the Applicants left China for Australia.[2]
[2] Ibid 67.
On 27 August 2013 the Applicants applied for a Visa.[3]
[3] Ibid 1.
The Applicants claimed that they were Falun Gong practitioners and faced persecution because of their beliefs. They claimed that their son had died in a car accident in 2010 which was the result of ‘610 squad’ officers chasing their son. This occurred following warnings from the 610 squad for the Applicants to stop practising Falun Gong.[4]
[4] Ibid 328 [12].
The Applicants claim that after the death of the son, they received warnings and began moving around in China to avoid detection.[5] They claimed to fear harm from Chinese authorities, including torture, being subject to organ harvesting or other unspecified persecution.[6]
[5] Ibid 239 [14].
[6] Ibid 329, 330 [12] – [14].
The Applicants did not begin practising Falun Gong openly in Australia until late 2012, fearing to do so prior to this.[7] As a part of their application, they provided letters of support and photos of them attending Falun Gong events.[8]
[7] Ibid 329 [14].
[8] Ibid 330 [16] – [17].
On 10 June 2014, a delegate of the Second Respondent refused the application for a Visa. The Applicants applied for a review of this decision.
On 20 January 2015 and 9 February 2015 the Tribunal held two hearings to review the decision.
On 30 April 2015 the Tribunal affirmed the decision of the delegate.
Tribunal decision
The decision of the Tribunal was outlined accurately in the submissions of the First Respondent from [11](a) – (j), which are extracted below (citations omitted):
a)With respect to the Applicants’ son, the Tribunal had some doubts that he was dead, but ultimately was prepared to give the Applicants the benefit of the doubt and to find that the son had died in a car accident.However, the Tribunal did not accept that the son had died for the reasons claimed or that he had any Falun Gong connections. That finding followed largely from a lack of reliability in the account given by the Applicants to the Tribunal, including inconsistencies in the evidence given;the development in the story over time, leading the Tribunal to find that the story had been fabricated;implausibility about the eye-witness; and implausibility of the overall account of the story.
b)With respect to the Applicants’ connections with Falun Gong, the Tribunal did not accept that the Applicants had been Falun Gong practitioners in China before they came to Australia, or that the 610 unit had searched the Applicants’ house.
c)The Tribunal did not accept that the Applicants had been “on the run” for the period as claimed. That finding followed from the vagueness of the evidence; the inconsistency of the evidence (i.e. that the evidence changed over time); and the implausibility of the story.
d)The Tribunal took into account that the Applicants had remained in China for some time after obtaining visas to come to Australia before they departed, which suggested a lack of subjective fear of the Chinese authorities.
e)The Tribunal took into account that the Applicants had been able to leave China lawfully with their own papers, and without any difficulty from the authorities. That suggested that they did not have any adverse profile in China, including as Falun Gong practitioners.
f)The Tribunal took into account that the Applicants were in Australia for a long time before they sought protection visas. During that period, the Applicants had also spoken with lawyers about visas. However, they claimed not to have received advice specifically about protection visas and none had been proffered.
g)The Tribunal took into account that the Applicants’ claimed period of Falun Gong activity in Australia coincided with the period of their unlawfulness in Australia (having overstayed their visas). In the circumstances, the Tribunal found that the Applicants had pursued their Falun Gong activities to increase their chances of obtaining protection visas.
h)The Tribunal did not accept that the Applicants’ daughter had also pursued Falun Gong. That finding followed from the lateness of the claims about those activities and the limited evidence about any activities she may have pursued.
i)The Tribunal accepted that there could be a risk of harm to Falun Gong leaders in China, but not to nationals who had practiced Falun Gong only overseas. The Tribunal did not accept that there would be any risk of harm to the Applicants based on adverse State interest in their activities. They were not leaders of Falun Gong and there was little chance that they had come to the attention of Chinese Intelligence networks.
j)The Tribunal did not accept that the Applicants would be questioned on re-entry to China, nor that their protection visa application would be known to the authorities. The Tribunal also found that the Applicants were not genuine Falun Gong practitioners and so would be unlikely to practice Falun Gong, or come to the attention of the authorities for that reason, if returned to China. Alternatively, the Tribunal found that, even if the authorities did know about the Applicants’ activities, that would still not render them b risk because of the contrived nature of the claims and activities undertaken in Australia. They would also not be harmed as persons who had practiced only overseas.
On the basis of the above, the Tribunal affirmed the decision of the delegate.
Witnesses
The Applicants sought to have three witnesses give evidence before the Tribunal. The Applicants claimed that Witness A was a bystander who has called an ambulance for the Applicants’ son after the car accident. The Applicants claimed that Witness B was a childhood friend of their son who practised Falun Gong with the First Applicant. Witness C was the doctor who treated the Applicants’ son in hospital after the car crash.[9] The Tribunal decided not to contact Witnesses A and B, stating that the risks involved with contacting the witnesses in China would be too great. It was also stated that even if the Tribunal chose to contact the witnesses were contacted via telephone, there was no way to satisfactorily verify their identity in order to receive their evidence. The Tribunal considered the accounts of Witness A and Witness B, tendered via pre-hearing submissions of the Applicants’ migration agent, to be fabricated to bolster the claims of the Applicants.[10]
[9] Witness C was not contacted by the Tribunal for evidence because it was considered irrelevant to the Applicants’ claims in relation to Falun Gong: Court Book 340 [54].
[10] Court Book 340 [50] – [53].
Grounds of review
The grounds of the application for judicial review are extracted below from the amended originating application, filed 29 March 2018, and with identifying details removed.
1.The decision of the Tribunal is affected by jurisdictional error, in that the Tribunal misconstrued its power to take evidence from witnesses under ss. 426 and 427(1) of the Migration Act 1958 (Cth), or took into account prohibited irrelevant considerations.
Particulars
a.The Applicants requested that the Tribunal take evidence from two witnesses in China, [Witness A] and [Witness B], who were said to be persons who would give evidence corroborative of the Applicants' claims.
b.The Tribunal decided not to take evidence from [Witness A] or [Witness B].
c.The Tribunal said its reasons for not calling these two witnesses were "doubts as to who I would be speaking to" and concerns about discussing Falun Gong and specialist police issues by phone in China which could jeopardise his safety of the witnesses or give rise to a sur place claim.
d.These were prohibited irrelevant considerations or reveal a misapprehension of the statute.
e.The relevant considerations for the purposes of s 426 and 427(1)(a) are matters relevant to procedural fairness, and reaching the correct and preferable decision, and the avoidance of unnecessary delay.
f.Sections 426 and 427(1)(a) do not authorise the Tribunal to refuse to contact relevant witnesses on the basis of:
i. concerns for the safety of the witnesses themselves;
ii. concerns for the review Applicants safety;
iii. on the basis of speculation that the telephone call or video link will be monitored by the authorities; and
iv. the difficulty of confirming the identity of witnesses by telephone.
g.The Tribunal’s refusal to take evidence from witnesses in the absence of a lawful refusal amounted to procedural unfairness, and/or a constructive failure to exercise jurisdiction to provide the review the Applicants are entitled to under the Act.
2.The decision of the Tribunal is affected by jurisdictional error, in that the Tribunal’s exercise of its discretion under ss. 426 and 427(1)(a) of the Migration Act 1958 (Cth) unreasonably and/or without giving genuine consideration to the Applicant’s request to call witnesses.
Particulars
a.The Applicants requested that the Tribunal take evidence from two witnesses in China, [Witness A] and [Witness B], who were said to be persons who would give evidence corroborative of the Applicants' claims.
b.The Tribunal decided not to take evidence from
[Witness A] or [Witness B].
c.The Tribunal said its reasons for not calling these two witnesses were "doubts as to who I would be speaking to" and concerns about discussing Falun Gong and specialist police issues by phone in China which could jeopardise his safety of the witnesses or give rise to a sur place claim.
d.The Tribunal was obliged to exercise its discretion under s 426 of the Act reasonably.
e.The Tribunal was required to give genuine consideration to the Applicant’s request that it take oral evidence from [Witness A] and [Witness B].
f.The Tribunal’s decision to not take evidence from [Witness A] and [Witness B] was unreasonable and/or did not constitute genuine consideration because:
i.the evidence of [Witness A] would have been direct evidence of an event critical to
ii.the Applicants’ claims, which the Applicants had no firsthand knowledge;
iii.the Tribunal relied on speculation that telephone calls to the witnesses would be monitored, and its concern this could create a sur place claim for the Applicants;
iv.the Tribunal relied on its concern for the personal safety of the witnesses;
v.the Tribunal relied on the difficulty of identifying the witness over the telephone;
vi.the Tribunal did not find that if [Witness A] or [Witness B] gave persuasive evidence it would not have affected its reasons; and
vii.the Tribunal found the witnesses were fabricated without speaking to either the witness.
Consideration of extension of time
This application was filed on 29 March 2018, almost 11 months out of time.
Section 477(2)(b) of the Migration Act 1958 (‘the Act’) provides that the Court may extend the time for making an application of the Court is satisfied in the interest of the administration of justice to do so.
In considering the interests of justice the Court has regard to:
(a)the extent of the delay;
(b)the explanation for delay;
(c)whether there is an prejudice to the respondents;
(d)the impact on the Applicant; and
(e)an assessment of the merits of the substantive application.[11]
[11] SZTES v Minister for Immigration and Border Protection [2015] FCA 719 [47].
The delay in this matter is substantial. Applicants’ explanation for delay is set out in an affidavit affirmed by the First Applicant on
28 March 2018. By that affidavit, it is said that the Applicants were notified of the Tribunal’s decision on 30 April 2015 by their lawyer and that they were told that it would cost them $20,000 to go to court. It was said that they could not afford to do this as they do not have any savings and do not work. Further, they say that their daughter who is an Australian citizen does not have much money and could not afford to assist them. For this reason they requested ministerial intervention instead.
They were informed by a letter dated 1 April 2016 from the Department of Immigration and Border Protection that the Minister had declined to intervene in the case. The Applicants were referred to a lawyer who then filed the application for judicial review on 22 April 2016
Pursuing ministerial intervention is not a sufficient reason for delay in filing an application for review: Das v Minister for Immigration and Multicultural Affairs [2004] FCA 489 [8] – [11]. Further, lack of funds or the time taken to discuss the matter with lawyers is not an adequate explanation.[12] The affidavit does not explain why the Applicants are now able to afford to engage lawyers whereas they are unable to do so in 2015 when the Tribunal handed down its decision.
[12]Das v Minister for Immigration and Multicultural Affairs [2004] FCA 489 [12].
Merits of the application
Ground one – the Tribunal took into account irrelevant considerations and/or misconstrued its statutory obligations under ss. 426 and 427
The first ground concerns a failure to take into account a relevant consideration, which can only be made out if a decision-maker fails to take into account consideration which he is bound to take into account in making that decision. The facts a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.[13] Pursuant to s.426(2) of the Act, the Applicant is entitled to notify the Tribunal if they wish for the Tribunal to take oral evidence. If the Applicant does so, the Tribunal “must have regard to the Applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the Applicants notice”: s.426(3). The Tribunal may take evidence on oath or affirmation[14] and may allow the giving of evidence by a witness by telephone.[15]
[13] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 [15].
[14] Migration Act 1958 (Cth) s.427(1)(a).
[15] Ibid s.429A.
In the present case the Applicants complain that the Tribunal did not take evidence from Witness A, who was said to have witnessed their son’s car accident. That witness was said to be a Falun Gong practitioner who knew the Applicants’ son. The Applicant referred to CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 [58] where Rangiah J identified the relevant considerations for the purposes of s.426:
… [t]he relevance and importance of the proposed evidence, whether written evidence is sufficient for the Tribunal’s purpose, whether taking the evidence would cause undue delay, the ease or difficulty of contacting the proposed witness and the availability of suitable interpreter. In an appropriate case, the Tribunal might decide that the evidence of an Applicant is so compromised that hearing the oral evidence of the corroborating witness could not affect the outcome…
At [50] of the Tribunal’s decision, it set out in clear terms why it had doubts about the Applicants’ account of the car accident and why taking evidence from Witness A would not alleviate those doubts. The Tribunal found at [50] that there had been “substantial evolution” in Witness A’s involvement from simply being a “reference to an un-named passerby who arranged an ambulance” to an “eyewitness who conveyed detailed knowledge”. The failure to mention the apparently detailed knowledge of the witness to the Department was something the Tribunal took into account in assessing credibility. It was against the background of the findings in [49] – [53] of the decision that the Tribunal considered whether to take evidence from Witness A. At [52] the Tribunal stated:
I did not take evidence from [Witness A] at the hearing, as discussed, given the above matters, I had doubts as to who I would be speaking to by telephone, and regardless, concerns about discussing Falun Gong and specialist police issues by phoning China – which could jeopardise his safety or give rise to a sur place claim for the Applicants. For the same reasons, and given my cumulative doubts, I also did not take evidence from [Witness B], the son’s friend in China who purportedly was a Falun Gong member and occasionally practised with the Applicant in China.
Those findings in relation to credibility and that the evidence to be given by Witness A was unlikely to affect those findings were open to the Tribunal. Those considerations were not irrelevant matters for the Tribunal’s consideration under s.426.
The Tribunal’s expression of concerns about the safety of the witnesses and sur place claims were open to the Tribunal and the Applicant’s claims regarding Chinese intelligence authorities provided a basis for the Tribunal to think that the calls to China might found sur place claims. The Tribunal determined not to receive evidence after considering the Applicants’ claims and this was an option plainly open to it, having regard to the scheme of legislation.
Ground two - unreasonable exercise of discretion
There is significant overlap between grounds one and two. The Applicant submits that the failure to call a witness because of speculation that the telephone call would be intercepted was capricious and unreasonable and that the Tribunal had failed to provide an intelligible justification for its speculation that the Applicant or others would be at risk if it were to call Witness A or Witness B. In my view, the decision of the Tribunal reveals intelligible and logical reasons for not taking the evidence of those witnesses. The Tribunal at [50] clearly it expressed its reasons and those reasons are not affected by unreasonableness in the sense that it lacks an intelligible justification.[16] This is not a case where there is no evidence that the Tribunal considered or had regard for the request to call the witnesses and in my view the decision of the Tribunal indicates that it gave genuine consideration to a request. The Tribunal must have regard to the notice but does not necessarily have to comply with it: Minister for Immigration and Multicultural Affairs v Maltsin [2005] FCAFC 118 at [37].
[16] Minister for Immigration and Citizenship v Li [2013] HCA 18 [76]
Conclusion
Having regard to the length of delay and the lack of apparent error in the reasons of the Tribunal, the Court refuses the application for an extension of time.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 7 September 2018
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