AZH15 v Minister for Immigration

[2016] FCCA 2230

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZH15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2230

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) – whether applicants raised an arguable case for the relief they seek – whether there is an arguable case the Tribunal made a jurisdictional error by proceeding on the basis that, because the applicants had previously unsuccessfully applied for protection on the basis of their being refugees before the complementary protection criterion came into effect the Tribunal had power to consider the application for review only against the complementary protection criterion – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2), 36(2)(a), 36(2)(aa), 91R, 424A

Cases cited:

AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

SZRAG v Minister for Immigration and Border Protection [2016] FCA 189

SZVCH v Minister for Immigration and Border Protection [2015] FCCA 405

First Applicant: AZH15

Second Applicant: AZI15

Third Applicant: AZJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1566 of 2015

Judgment of: Judge Manousaridis

Hearing date: 25 August 2016

Delivered at: Sydney

Delivered on: 30 August 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms E Warner-Knight of

Australian Government Solicitor

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1566 of 2015

AZH15

First Applicant

AZI15

Second Applicant

AZJ15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for review be dismissed, because the application does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).

2. The application for a Protection visa was made by the first applicant (applicant), and his wife and child. The applicant’s wife and child joined in the application as members of the family unit of which the applicant was a member.

Claims for protection

1. In his application for a Protection visa, the applicant claimed he left China to avoid persecution by police, government officials, and thugs connected to the police and government officials. The applicant claimed he experienced significant physical harm, mental torture, and was detained because he practised Falun Gong in China.

2. The applicant also claimed that in 2011 the local government confiscated land which he owned, and which was worth 350,000RMB, because the applicant was a Falun Gong member. A friend farmed the land after the applicant left for Australia and that, as a farmer, the applicant and his family’s livelihood “is reliant upon the land”. The land was confiscated without any compensation and, when the applicant’s sister complained to the government, it did not take any action, but instead threatened the applicant’s sister that if she continued to make trouble she may be detained.

3. The applicant further claimed the government informed his sister that the applicant should be arrested because he is a Falun Gong practitioner and did not have a right to complain about the matter. The applicant claimed if he is returned to China, he will protest against the Chinese government because he does not have any land to farm to make a living.

4. The applicant also claims the government will take action to prevent the applicant and the second applicant (the applicant’s wife) from registering the third applicant, the applicant’s second born son. The applicant stated in his protection visa application, however, that “we prepare [sic] to pay the social compensation fee”.

5. Relevant to one of the grounds raised in the application is the fact that each of the applicants had previously applied unsuccessfully for a protection visa. They did so before there came into effect s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). That is, the applicants had previously applied for a Protection visa where the only ground on which such visa could be granted was if an applicant satisfied the Minister that the applicant was a “refugee” within the meaning of Art 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention). Paragraph (aa) of s.36(2) of the Act introduced what is usually referred to as the complementary protection criterion. The delegate considered the applicants’ claims against both s.36(2)(a) and s.36(2)(aa) of the Act.

Tribunal’s decision

1. The Tribunal first noted that the applicants had each, separately, applied for a protection visa on a previous occasion. The applicant unsuccessfully applied for a protection visa in 2004; the second applicant in 2008; and, the third applicant in 2010.  The Tribunal referred to the decision of SZGIZ v Minister for Immigration and Citizenship[1] and, applying the Full Federal Court’s reasoning in that decision, found it did not have the power to consider the criterion in s.36(2)(a) of the Act. The Tribunal, therefore, only considered the application for review against the complementary protection criterion specified in s.36(2)(aa) of the Act.

   [1] (2013) 212 FCR 235

2. The Tribunal was not satisfied the applicant was a credible witness. It found the applicant was often evasive, failed to answer questions about his claims and, when he did provide information, it was vague and often confused.  In particular:

   a)The Tribunal found the applicant gave highly contradictory evidence about being a Falun Gong practitioner. The applicant indicated in his protection visa application form that he was a member and practitioner of Falun Gong and, as a result, suffered significant physical harm, mental torture, and was detained when practicing Falun Gong in China. The applicant, however, gave contradictory evidence before the Tribunal. He said he did not know about Falun Gong because he only saw a person practice Falun Gong at a worksite in China; he just sat and did some hand movements; authorities chased them and they ran away; and, he was not physically harmed or detained for being a Falun Gong practitioner in China. The Tribunal found the applicant was reluctant to confirm or deny he is a Falun Gong practitioner, and he refused to answer the Tribunal’s questions several times. The Tribunal, therefore, did not accept the applicant copied the Falun Gong movements of another person at a worksite in China; or that the applicant was ever a Falun Gong practitioner at any level, in China or in Australia, or that the applicant was ever harmed, detained or summoned, or attracted any adverse interest from the authorities in China for practicing Falun Gong.

   b)The Tribunal found the applicant’s evidence about the claimed confiscation of his family’s land vague and internally inconsistent. The applicant initially claimed the land was confiscated because he is a Falun Gong practitioner, but he later changed his evidence stating the authorities used the allegation that he was a Falun Gong practitioner as an excuse to confiscate the land. Further, the applicant was unable to explain why the authorities waited so many years after the applicant left China to confiscate the land; or why the authorities would need to use the applicant’s claimed Falun Gong practice as a reason for the confiscation; or, why the authorities would attribute the land to the applicant given the land belonged to his family who continued to utilise the land following the applicant’s departure from China.[2] The Tribunal found the applicant gave vague responses about how the authorities confiscated the land, giving no real indication about how the confiscation occurred, and was non-cooperative in providing any detail regarding what problems the confiscation caused for his family.

   c)The Tribunal gave the applicant “the benefit of the doubt” and accepted the applicant had another son in China, that the third applicant is the applicant’s second child and that the birth of the third applicant is in breach of China’s family planning rules. The Tribunal found, however, that the applicant gave inconsistent evidence with regard to his willingness and ability to pay the social compensation fee to have the third applicant added to his household registration in China. The applicant, in the protection visa application, stated he and his wife were prepared to pay the social compensation fee, but he later changed his evidence at the hearing and stated the applicant and his wife could not afford to pay the fee. The Tribunal did not accept the applicants will be unable to pay the social compensation fee in Chian to have the third applicant added to the household register.

   d)The applicant made an additional claim before the Tribunal that it was not at all possible for the third applicant to be added to his household registration. The Tribunal referred to country information that contradicted this claim and found the applicant’s evidence was internally inconsistent and was also contradicted by a substantial volume of country information.

   [2]  The applicant, in his application form, claimed his friend farmed the land. The Tribunal, however, did not refer to this part of the applicant’s claims. The Tribunal only referred to the evidence the applicant gave at the hearing that it was his parents who “rely upon the land for their life” (CB97(l)). Nothing turns on this.

3. The Tribunal did not find the applicants’ claims credible apart from its accepting the third applicant had been born in breach of China’s “one child policy”, and that a social compensation fee would need to be paid for him to be added to the applicants’ household register. The Tribunal did not accept the applicant would be unable to pay that fee; or that there is a real risk the applicants will be unable to add the third applicant to the household register in China; or that the imposition or payment of a fee, in the range calculated, either as a lump sum or by instalments, would amount to serious or significant harm.

4. Although the Tribunal considered it only had power to consider the applicants’ application for review against the complementary protection criterion, in its conclusion the Tribunal said the applicants did not satisfy either of the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act. The Tribunal did not in fact assess the applicants’ claims under s.36(2)(a); it did so only by reference to s.36(2)(aa) of the Act. I find that it was through error that the Tribunal referred to s.36(2)(a) in its conclusion.

Grounds of review

1. The amended application filed on 3 August 2016 contains three grounds of review. The first ground of review is:

   The Tribunal failed to comply with s424A of the Act

   Particulars:

   The Tribunal did not give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, and did not invite the applicant to comment on it

2. This ground does not state any arguable case for the relief it seeks. It does not identify the information, particulars of which it is claimed the Tribunal was obliged, but failed, to give to the applicants. There is nothing apparent on the material that is before me of any information on which the Tribunal relied that engaged s.424A of the Act.

3. The second ground of review is:

   The Tribunal erred in the finding that is unsupported by evidence.

   Particulars:

   The Tribunal made the finding that the inconsistent statements made by the applicant that “the applicant stated he was willing to pay the social compensation fee” and “the applicant could not afford to pay the fee”.

4. This ground claims there was no evidence on the basis of which the Tribunal could have found the applicant made inconsistent statements about his ability to pay the social compensation fee. As I have already noted, in his application for a Protection visa, however, the applicant stated “we prepare [sic] to pay the social compensation fee”. The Tribunal read this as the applicant’s stating that he was able to pay the social compensation fee. It is beyond argument it was reasonably open to the Tribunal to so read it. In its reasons for decision, on the other hand, the Tribunal recorded the applicant stating the applicants could not pay the social compensation fee. The transcript of the hearing before the Tribunal is not in evidence before me; and there is nothing to suggest the Tribunal incorrectly recorded the applicant stating before it that he could not afford to pay the social compensation fee.

5. Ground 2, therefore, does not state any arguable case for the relief it seeks.

6. The third ground of review is:

   The Tribunal failed to consider the applicant’s claims in accordance to the refugee criterion under s36(2)(a) of the Migration Act 1958 (Cth).

7. From submissions the applicant, who is not legally represented, made at the hearing before me, it is clear this ground relies on the decision of Judge Driver in SZVCH v Minister for Immigration and Border Protection.[3] In that case, the Tribunal, like the Tribunal in the case before me, reviewed an application for a protection visa by an applicant who had previously unsuccessfully applied for a Protection visa before s.36(2)(aa) of the Act came into effect. Like the case before me, the Tribunal in SZVCH reviewed the application for review only against s.36(2)(aa) of the Act. Judge Driver held the Tribunal made a jurisdictional error by not considering the application for review against both s.36(2)(a) and s.36(2)(aa) of the Act. The basis of his Honour’s conclusion was that the delegate considered the application for a Protection visa against both the criteria specified in s.36(2)(a) and s.36(2)(aa) of the Act.

   [3] [2015] FCCA 405

8. Ms Warner-Knight, who appeared for the Minister, informed me that an appeal against Judge Driver’s orders has been heard, but not determined, by the Full Federal Court. Ms Warner-Knight nevertheless submits there is no arguable case that the Tribunal in the case before me made a jurisdictional error by considering the application only by reference to s.36(2)(aa) of the Act; and Ms Warner-Knight so submits because the Federal Court, in two judgments, has held that the Tribunal did not, in circumstances identical to those that were present in SZVCH, have power to consider an application for a Protection visa against s.36(2)(a) of the Act.

9. The first judgment is AMA15 v Minister for Immigration and Border Protection, where, Markovic J said:[4]

   [44] The Second PV Application was valid because it was based on the complementary protection criteria. Accordingly it could only be granted if the Minister was satisfied that the “other criteria prescribed” by the Act or the regulations were satisfied. Those other criteria would, it follows, be those relevant to s 36(2)(aa). In other words consideration of s 36(2)(a) had no part to play.

   [45] The question that then arises is, whether in circumstances where the delegate having turned her mind to s 36(2)(a) and made findings in relation to that criteria, the Tribunal was then obliged to do so as found by Driver J in SZVCH. With respect, I do not think it was so obliged.

   [4] [2015] FCA 1424 at [44], [45]

10. The second judgment is SZRAG v Minister for Immigration and Border Protection.[5] One issue in that case was whether the Tribunal ignored s.91R of the Act, which applied to the criterion provided for by s.36(2)(a). The Tribunal did not consider that criterion because, like the Tribunal in the case before me, it considered it had power to consider the application for review only against s.36(2)(aa) of the Act. Katzmann J held the Tribunal was correct to proceed in that way:[6]

    [T]he Tribunal rightly proceeded on the basis that it could only consider the appellant’s claims in the context of the complementary protection provisions of the Act. Not only was this approach not “manifestly unreasonable”, it was correct as a matter of law. See AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 (Markovic J).

    [5] [2016] FCA 189

    [6] [2016] FCA 189 at [23]

11. Ms Warner-Knight submitted that the fact the Full Federal Court has reserved its decision in the appeal from Judge Driver’s orders in SZVCH means there are two clear Federal Court decisions which put it beyond argument, so far as this Court is concerned, that the Tribunal in the case before me made no jurisdictional error by determining the application for review before it on the basis that it had power only to consider the applicants’ application for review against the complementary protection criterion provided for in s.36(2)(aa). I agree with Ms Warner-Knight’s submission.

12. The possibility remains, however, that the Full Federal Court may uphold Judge Driver’s orders and the reasoning that supported those orders. The applicants can protect themselves from any potential prejudice they may suffer, however, if the Full Federal Court uphold Judge Driver’s orders in SZVCH and the reasons supporting those orders, by filing an application for leave to appeal from the orders I will make in these proceedings, in which they state as a proposed ground of appeal that I have erred in holding the Tribunal did not make a jurisdictional error by determining the applicants’ application for review on the basis that the Tribunal did not have power to determine their application for review against both s.36(2)(a) and s.36(2)(aa) of the Act, but only against s.36(2)(aa) of the Act.

Disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 30 August 2016