Aym18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3330

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYM18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3330

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 474, 476, 499

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC

107

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs

(2004) 221 CLR 1

Minister for Immigration and Citizenship v SZLSV [2010] FCAFC 108

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 668

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001)

205 CLR 507

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

NADH of 2001 & Ors v Minister for Immigration and Multicultural and

Indigenous Affairs (2004) 214 ALR 264

Applicant: AYM18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:   SYG 530 of 2018

Judgment of: Judge Emmett

Hearing date: 19 November 2019

Date of Last Submission: 19 November 2019

Delivered at: Sydney

Delivered on: 19 November 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Mr Cameron O’Sullivan
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 530 of 2018

AYM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 7 February 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent made on 11 December 2015 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).

2. The chronology, protection claims and the Tribunal decision are accurately summarised in the first respondent’s submissions as follows:

   “CHRONOLOGY

   4. The applicant is a citizen of the People's Republic of China (China), who arrived in Australia on March 2014 as the holder of a student visa (Court Book (CB) 19, 113 at [2]). The applicant applied for the protection visa on 9 June 2015 (CB 1 to 43, 52).

   5. On 14 September 2015, the applicant was invited to attend an interview with the delegate scheduled for 7 October 2015 (CB 60 to 64). The applicant did not attend his interview (CB 73), and the Delegate made a decision to refuse to grant the protection visa on 11 December 2015 (CB 65 to 78).

   6. The applicant applied to the Tribunal for review of the Delegate's decision on 12 January 2016 (CB 79 to 80). The applicant attended a hearing before the Tribunal on 31 January 2018 (CB 104 to 105), and the Tribunal made a decision to affirm the delegate's decision on 7 February 2018 (CB 121).

   PROTECTION CLAIMS

   7. In his application for the protection visa, the applicant claimed (CB 40 to 41) that he fears persecution from authorities were he to return to China, because he:

   7.1 became a Falun Gong practitioner in May 2014

   7.2 regularly practiced and had read 2 books on Falun Gong

   7.3 attended 2 Falun Gong gatherings in Sydney where he practised in public and distributed pamphlets

   7.4 called his family in China on 30 May 2015 and his father told him that the police had come to their home and asked whether the applicant was a Falun Gong practitioner, and threatened the applicant if he returned.

   TRIBUNAL DECISION

   8. The Tribunal found that the applicant was an evasive witness who 'does not tell the truth' and 'will tell the Tribunal whatever he thinks will assist him to achieve a positive migration outcome, or to avoid scrutiny of his claims' (CB 115 at [18]). The basis for the Tribunal's adverse credibility findings can be summarised as follows:

   8.1 First, the Tribunal found that the applicant 'was unable to answer the most basic questions… about Falun Gong' and did not have a basic understanding of Falun Gong (CB 116 at [24]-[26]).

   8.2 Second, the Tribunal found inconsistencies in the applicant's evidence about the number and dates of Falun Gong gatherings that he had attended (CB 116 to 117 at [27]-[28]).

   8.3 Third, the Tribunal found inconsistencies between the applicant's oral evidence and written application about police in China attending his family's home and asking questions (CB 117 at [30]).

   8.4 Fourth, these concerns were put to the applicant, but he stated that he had nothing to say, except that he was fearful of returning to China (CB 117 at [32]).

   9. The Tribunal did not accept that the applicant was a genuine Falun Gong practitioner, or that he participated in any Falun Gong activities in Australia, or that police had gone to his family home. The Tribunal rejected the applicant's protection claims and found that the applicant did not fear being arrested and detained in China and that if returned to China he would not come to the attention of any authorities (CB 117 at [31]).”

3. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 28 March 2018. At that directions hearing, the applicant was given leave to file an amended application, any further evidence by way of affidavit and submissions in support of his application. The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language. The matter was set down for callover on 13 June 2019 before me. On 13 June 2019, the applicant attended the callover and was directed again to file and serve submissions in support of his application, and the matter was set down for hearing today before me.

4. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

5. The applicant confirmed that he continued to rely on the grounds of his initiating application, filed on 28 February 2018. Those grounds are contained under two headings, Orders sought by Applicant and The Grounds of the Application. They are as follows:

   “Orders sought by Applicant

   1, I don’t think DIBP and AAT's decision are fair and reasonable as they failed to take; a good consideration in my commitment of Falugong, ignoring my background and actual practice in Australia.

   2, AAT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

   3, AAT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

   The Grounds of the Application are:

   1, I have been actively involved in Falungong practice in Australia.

   2, AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

   3, It is unfair decision from the tribunal and the member's prejudice to our review application was totally unacceptable.”

6. Each of the grounds was interpreted to the applicant and he was invited to say whatever he wished in support of them.

7. In relation to the Orders sought by Applicant, the applicant had nothing to say. I then asked the applicant if he could tell the Court which were his statements, explanations or evidence that he provided, that he asserted the Tribunal failed to consider. The applicant responded that he could not remember.

8. The applicant said that he had nothing further to say in relation to the Grounds of the Application.

9. The first respondent explained that they essentially relied on their written submissions.

10. Again, the applicant was given an opportunity to say whatever he wished in support of his application and the applicant said, again, that he had nothing further to say.

11. A fair reading of the Tribunal’s decision record does not support any of the complaints made by the applicant.

12. The Tribunal correctly identified the criteria for a Protection Visa at the outset of its decision record. It then summarised the applicant’s claims. 

13. The Tribunal was satisfied as to the identity of the applicant as a citizen of China and that Falun Gong practitioners are persecuted in China. However, the Tribunal found the applicant to be an evasive witness who does not tell the truth. The Tribunal found that the applicant would tell the Tribunal whatever the applicant thought would assist him to achieve a positive migration outcome or to avoid scrutiny of his claims. The Tribunal then identified with particularity the various concerns that it had about his evidence in relation to his claim to have been practicing Falun Gong since May 2014.

14. The Tribunal found that the applicant was unable to answer the most basic questions from the Tribunal about Falun Gong. The Tribunal identified what some of those questions were; such as that the applicant did not know the name of the founder, nor the location of the human body of the law wheel and could not tell the Tribunal how many exercises there were in Falun Gong practice. The Tribunal also found that any questions about Falun Gong the applicant did answer were wrong. The Tribunal noted that while not all Falun Gong practitioners would have a sophisticated understanding of the theory behind Falun Gong, it was reasonable to expect this applicant to have a basic understanding of Falun Gong. 

15. Ultimately, the Tribunal rejected the applicant’s claims to have practised Falun Gong or to have read any books about it and found that the applicant is not a genuine Falun Gong practitioner.

16. The Tribunal then considered the applicant’s assertion that the reason the Chinese authorities would know about his Falun Gong activities in Australia was because he participated in one protest in Hyde Park in Sydney in July 2015. The Tribunal noted that the applicant’s application for a Protection Visa was filed on 10 June 2015, thereby finding the claim that he participated in the gathering in July 2015 to be impossible.

17. The Tribunal noted that it raised all its concerns with the applicant at the hearing and invited him to comment or respond to those concerns. The Tribunal noted that after a short break, the applicant stated he had nothing to say, except that he was fearful of returning to China. The Tribunal found that the applicant had not attended any Falun Gong gatherings in Australia.

18. In short, the Tribunal comprehensively rejected all the claims made by the applicant about past or present Falun Gong activities, including that the police had ever attended his parent’s house.

19. In the circumstances, the Tribunal found that the applicant did not satisfy the protection criteria under s.36(2)(a) of the Act or the complementary criteria under s.36(2)(aa) of the Act.

20. Ground 2 and Ground 3 of the Orders sought by Applicant, and Ground 2 of the Grounds of the Application assert essentially that the Tribunal did not consider the applicant’s statements and comments given to questions asked at the hearing and that the Tribunal failed to consider explanations and evidence. As stated above, none was identified by the applicant this morning.

21. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

22. It is well-established that a finding that a decision maker has not engaged in an active intellectual process is not to be made lightly and must be supported by clear evidence. It should also be borne in mind that the judicial review applicants carry the onus of proof (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [48]).

23. The applicant’s complaint that the Tribunal based its decision on its own knowledge and did not consider the applicant’s statements, comments and answers given to questions at the hearing, is simply not made out. The Tribunal provided in detail the various exchanges it had with the applicant about his evidence, the matters of concern that it put to the applicant and that the Tribunal noted the applicant’s responses. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. The applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant has not done so and, in the circumstances, the Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

24. The applicant’s complaint in the Orders sought by Applicant that the Tribunal failed to consider his commitment to Falun Gong, ignoring his background and actual practice in Australia, is not made out. The Tribunal explored with the applicant in detail his knowledge of Falun Gong and ultimately found that any questions about Falun Gong that the applicant did answer were wrong and that he was unable to answer the most basic questions about Falun Gong. 

25. It is well established that when the applicant makes a claim to be an inherent of a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what the applicant knows about the religion in order to assess the genuineness of his claim (Minister for Immigration and Citizenship v SZLSV [2010] FCAFC 108 at [36], [38] – [39] per Kenny J). The Tribunal’s decision record discloses that the Tribunal, in this case, was doing no more than that.

26. The assertion in Grounds of the Application that the Tribunal unreasonably suspected the truthfulness of his claims just because of the absence of evidence, again, is not made out. The Tribunal, as stated above, went into great detail to explore the applicant’s claims with him and put to the applicant the concerns it had about his evidence noting the applicant’s responses.

27. The Tribunal noted the mandatory considerations that it must have regard to in accordance with Ministerial Direction number 56 made under s.499 of the Act. The Tribunal took into account the policy guidelines in PAM3 on relevant country information prepared by the Department of Foreign Affairs and Trade.

28. The Tribunal found that in the applicant’s case the relevant country information report was dated 21 December 2017. The Tribunal also had regard to the relevant Falun Gong books. As stated above, the Tribunal accepted that Falun Gong practitioners may still be at risk of harm in China, but having found that the applicant was not a Falun Gong practitioner and having rejected his claim that police had attended his parent’s house in China, the Tribunal concluded that the applicant is not a person to whom Australia has protection obligations.

29. At the heart of the applicant’s claims was an assertion that he feared harm by reason of being a Falun Gong practitioner. As stated above, the Tribunal explored that issue in great detail with the applicant and its finding that the applicant was not a general Falun Gong practitioner was open to it on the evidence and material before it and for the reasons it gave.

30. The Tribunal’s adverse credibility findings were squarely based on the applicant’s written and oral evidence and inconsistencies that it found to exist in the Tribunal’s assessment of that evidence. The various inconsistencies and implausibilities noted by the Tribunal did not relate to objectively minor matters, but it went to the core of the applicant’s claims and his credibility. 

31. It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue, and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per Mckerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).

32. The applicant has not identified any area of legal unreasonableness, reaching a finding without a logical or rational basis; failure to perform the required statutory task of review; or failure to take into account material critical to the formation of the requisite state of satisfaction. Nor is such error apparent on the face of the Tribunal’s decision record.

33. In the circumstances, none of the applicant’s complaints in the Orders sought by Applicant or the Grounds of the Application identify any jurisdictional error on the part of the Tribunal and none is apparent on the face of the Tribunal’s decision record. The applicant’s complaints appear more to be disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

34. To the extent that the Grounds of the Application suggest that the Tribunal member was biased, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. As stated above, the applicant did not provide any evidence in support of his application despite having an opportunity to rely on the transcript of the Tribunal hearing.

35. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

36. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal, in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J) or that it approached its task other than with a mind open to persuasion. Further, to the extent that the applicant construed the adverse credibility findings as an indication of bias, as stated above, the Tribunal is entitled to test the evidence vigorously when the applicant’s credibility is an issue (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]-[31] (“Re Refugee”)).

1. In short, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

2. Otherwise, the Tribunal’s review was conducted in a procedurally fair manner. The bundle of relevant documents filed on 20 April 2018 marked Exhibit 1R discloses that the Tribunal complied with the statutory regime in inviting the applicant to a hearing to give evidence and present arguments relating to the issues arising in his case. The invitation letter sent to the applicant on 11 December 2017 informed the applicant that the Tribunal had considered the material for it but was unable to make a favourable decision on that information alone. The applicant was invited to send any further material and documents to the Tribunal for its consideration.  The applicant provided only his passport.   As stated above, the Tribunal accepted that the applicant is a Chinese citizen.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to intervene.

4. The proceeding before this Court commenced by way of application filed on 28 February 2018 should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 22 November 2019