Azx16 v Minister for Immigration

[2018] FCCA 1058

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZX16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1058

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – none of the grounds asserted by the Applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed.

Legislation:

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

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

AJJ17 v Minister for Immigration [2018] FCA 205
BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574
WZAVW v Minister for Immigration [2016] FCA 760

First Applicant: AZX16

Second Applicant: BBY16

Third Applicant: BBZ16

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1150 of 2016

Judgment of: Judge Dowdy

Hearing date: 29 March 2017

Date of Last Submission: 14 June 2017

Delivered at: Sydney

Delivered on: 4 May 2018

REPRESENTATION

The First Applicant appeared in person.

Counsel for the Respondents: Ms. G. Doyle

Solicitors for the Respondents: Sparke Helmore Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 10 May 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1150 of 2016

AZX16

First Applicant

BBY16

Second Applicant

BBZ16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicants in this proceeding are as follows:

   a)the First Applicant is a female citizen of China aged 27 years, having been born on 3 November 1990.

   b)the Second Applicant is a male citizen of China aged 27 years, having been born on 30 August 1990, and is the husband of the First Applicant.

   c)the Third Applicant is a female citizen of China aged 5 years, having been born on 3 July 2012 in Australia, and is the daughter of the First and Second Applicants.

   (collectively, the Applicants)

2. The First Applicant lodged an application for a Protection (Class XA) visa (Protection visa) on 26 May 2014 in which the Second and Third Applicants were included as members of the same family unit, respectively as spouse and dependent child. The Second and Third Applicants did not make any specific claims of their own for protection.

3. By Application filed in this Court on 10 May 2016 the Applicants seek to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 20 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 27 March 2015 refusing to grant to them Protection visas. 

4. The First Applicant had arrived in Australia on a Subclass 571 Student visa on 15 September 2007 which expired on 7 December 2007. The First Applicant was then granted a subsequent Subclass 571 Student visa which expired on 15 March 2011. The First Applicant left Australia for a period of three weeks from 18 November 2010 to 12 December 2010. On 22 February 2011 the First Applicant applied for a Subclass 573 Student visa, which was ultimately granted and was valid until 30 December 2015.

5. The Second Applicant was granted a Subclass 571 Student visa on 28 March 2008 and entered Australia on 20 April 2008. This Student visa was extended on 11 June 2008 until 15 March 2010 when it expired and he remained in Australia as an unlawful non-citizen until 21 November 2013 when he was granted a bridging visa.

Claims for Protection

1. In her Protection visa application the First Applicant claimed as follows:

   The government has expropriated my family land without fair compensation. My father, relatives and others have protested against the government and also appealed the Central government. But the protesters have been charged of affray and my relatives were arrested and have been sentenced. I have also proprietary right to the land expropriated by the authorities. If I am removed to China I will join with my father and relatives to claim my rights in so doing, I will be harmed and persecuted by the authorities.

   The authorities have no intention to justify my family’s claim about the land expropriated, but rather do harm to my family. I therefore do not expect the authorities will protect us if we go back to China.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]–[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The First Applicant attended an interview with the Delegate on 26 March 2015 with the assistance of an interpreter in the Mandarin and English languages.

2. In her Decision Record of 27 March 2015 the Delegate found that the First Applicant was not a witness of truth and had either embellished or entirely fabricated her claims. In particular she found that there was no documentary evidence or any conclusive information to substantiate the claim that the First Applicant would be harmed on her return to China and she also found that the First Applicant’s delay in applying for a Protection visa since her arrival in Australia indicated a lack of urgency and that her fear of harm was not genuine. The Delegate found significant elements of the First Applicant’s evidence to be contradictory and lacking in specific detail and she rejected the First Applicant’s claim that she would participate in any anti-government activities if she were to return to China.

3. Accordingly, the Delegate came to the view that she was not satisfied that the First Applicant was a person to whom Australia had protection obligations under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and accordingly refused to grant Protection visas to the Applicants.

Decision of Tribunal

1. The Applicants applied to the Tribunal on 19 April 2015 for merits review of the Delegate’s decision.

2. By letter dated 10 March 2016 the Tribunal wrote a letter to the Applicants inviting comment on the ending by the Chinese government in late 2015 of its “one child policy”, which might indicate that there would be no need to pay a social compensation fee for a second child, although there would still need to be such a payment for a third child. The Tribunal did not receive a response to its letter.

3. On 24 and 27 November 2015 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages. The First Applicant’s mother also gave evidence at the Tribunal hearings. The Second Applicant did not attend either Tribunal hearing. By the time of the Tribunal hearings a son of the First and Second Applicants had been born on 3 June 2014 and the First Applicant was expecting her third child in May 2016. In these circumstances the First Applicant claimed at the hearings before the Tribunal that she would be unable to pay the social compensation fine for her third child if she returned to China and she would then suffer economically, particularly as she would be unable to find work and support herself and her family and the Second Applicant would also have difficulty finding work and be unable to pay the social compensation fee. This inability to pay the fee would result in the third child not being registered and not obtaining a hukou, which would mean an inability to obtain access to health and education services, and result in discrimination.  

4. In the result the Tribunal in its Decision Record found that the First Applicant was not a witness of truth and that her evidence had been inconsistent and increasingly embellished when the Tribunal had put to her its concerns and independent country information.

5. At [35] of its Decision Record the Tribunal recorded that it put country information to the First Applicant which indicated, contrary to her claims to protection (see [6] above), that land cannot be privately owned in China and that whilst families can privately own their house they cannot own the land itself and rural land is owned by village collectives which distribute land use rights to registered households in 30 year contracts. The First Applicant responded that as far as she knew the land belonged to her family.

6. At [36] the Tribunal recorded the First Applicant’s claims that the Chinese Government had announced that it was going to expropriate the land in 2006 but that it was not actually expropriated until 2008 and although compensation had been promised, no compensation was paid.

7. At [45] of its Decision Record the Tribunal recorded that the First Applicant stated that if she returned home to China she would only have to stand in her doorway and a passing soldier would come in and beat her. The Tribunal further noted that when it responded that this assertion did not appear credible, having regard to the fact that she had not been in her own village for over eight years and had never previously been involved in any protests relating to the land, the First Applicant did not respond.

8. At [46] of its Decision Record the Tribunal found as follows:

   [46]The Tribunal does not accept the applicant’s evidence that any local official, local authority or member of the army would have any adverse interest in the applicant as a result of any imputed opinion about the land expropriation as a result of being a member of a family whose land may have been expropriated and who objected to the amount of compensation offered.

9. At [49] of its Decision Record the Tribunal accepted the First Applicant’s evidence that she had never come to the adverse attention of local authorities (government, army or police) prior to her departure from China. At [53] the Tribunal recorded that it did not accept the First Applicant’s evidence that she would protest about the expropriation in light of the fact that she had left China over eight years ago, and that she did not protest when she returned to China in November / December 2010 and had acknowledged that there would be little or no resultant success if she did actually protest upon return to China.

10. In relation to the required social compensation fee for the First Applicant’s coming third child, the Tribunal considered this issue at [57] – [74] of its Decision Record and accepted that the First and Second Applicants would each have to pay a social compensation fee in respect of their third child and would thereby suffer some financial hardship, but was not satisfied that any economic harm that they might suffer as a result of such fees would constitute persecution or significant harm.

11. Accordingly, the Tribunal was not satisfied that any of the Applicants were persons in respect of whom Australia had protection obligations under s.36 of the Act and it affirmed the Delegate’s decision not to grant Protection visas to the Applicants.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicants are as follows:

   1. The Tribunal erred in finding with no supporting evidence or disclosure of its supporting documents.

   2. The Tribunal failed to take relevant consideration in the applicant's claims.

   3. The Tribunal failed to afford a fair hearing.

Consideration

Ground 1

1. At the hearing in this Court the First Applicant appeared to complain that the Tribunal had failed to provide her with any documents to prove its entitlement not to believe her and her claims. At transcript page 17.35 – 36 she submitted:

   … they didn’t believe me, then they need to show me the evidence of why they didn’t believe me.  

2. This complaint fails to establish jurisdictional error. As Heydon J stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 631 [76]:

   [76] It was for the first respondent to establish his claim, not for the Tribunal to disprove it…

3. It was primarily the responsibility of the First Applicant to place before the Tribunal in this case such material and evidence as she thought supported the claims she had made. It was then the task of the Tribunal to resolve those claims. As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]:

   [187] … The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

4. In this case the Tribunal, unfortunately for the Applicants, did not find the First Applicant to be a witness of truth. In considering her credibility the Tribunal was not bound to accept claims made by her and did not have to provide rebutting evidence. The law in this regard was recently stated by Perry J in AJJ17 v Minister for Immigration [2018] FCA 205 at [24] in the following terms:

   [24] The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that 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] FCA 1253; (1994) 52 FCR 437 at 451-452 (Beaumont J); Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see e.g. Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).

   (emphasis added)

5. This Ground fails to establish jurisdictional error.

Ground 2

1. This Ground is unparticularized and fails to identify any “relevant consideration” of the First Applicant’s claims which the Tribunal failed to take into account. At the hearing in this Court the First Applicant did not identify any such “relevant consideration”. Failure to particularize a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration [2016] FCA 760 per Gilmour J at [35]. Nevertheless, I have examined the Decision Record of the Tribunal and the relevant evidence in the Court Book for myself but have been unable to identify any such “relevant consideration”. The Decision Record accurately sets out at [19] the First Applicant’s claims as made in her Protection visa application and her interview with the Delegate.  Indeed [19] directly sets out verbatim almost the whole of the First Applicant’s claims as made in her Protection visa application. The Decision Record then evidences extensive consideration of the First Applicant’s claims in relation to expropriation of family land. The Decision Record further evidences substantial consideration of the First Applicant’s claims at the Tribunal hearing with respect to her coming third child and the necessary payment of a social compensation fee with respect to that child.

2. This Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.  

Ground 3

1. This Ground also fails to particularize or identify in what way the Tribunal “failed to afford a fair hearing”. Nothing was identified at the hearing in this Court by the First Applicant. Further, nothing appears on the face of the Decision Record of the Tribunal which would indicate that a fair hearing was not given to the Applicants. The Applicants were represented by a registered migration agent and although he did not appear at the Tribunal hearing he never made any complaint that the Tribunal hearing lacked any aspect of fairness.

2. Further, the Applicants have not tendered a copy of the transcript of the hearing before the Tribunal, notwithstanding that consent order 6 made by this Court on 3 June 2016 put the onus of tendering such a transcript upon them and that as well, I specifically pointed out to the First Applicant at the directions hearing on 3 June 2016 that in light of her complaint that the Tribunal hearing was not fair, she would probably need to get a copy of the transcript of the Tribunal hearing to make out her claim in this regard.

3. This Ground also fails to establish that the Tribunal’s decision is affected by jurisdictional error.

A Further Matter

1. The Minister as a model litigant drew attention to the fact that there appears at page 170 of the Court Book a Certificate purportedly issued under s.438 of the Act (s.438 Certificate) which applied to the information in:

   folios 60 – 61

   of file number CLF2007/121807

2. The Minister accepts that the s.438 Certificate is invalid on its face as not disclosing a sufficient basis for a claim of public interest immunity. The Minister also concedes that the existence of the s.438 Certificate was not disclosed to the Applicants but submits that such non-disclosure did not give rise to a denial of procedural fairness constituting jurisdictional error.

3. I accept the Minister’s submission in this regard. In my view the s.438 Certificate is invalid but no relevant non-disclosure has occasioned procedural unfairness to the Applicants. That is so for the following reasons:

   a)the two folios being “folios 60 – 61” were in a file held by the Department of the Minister relating to the First Applicant’s  application on 9 August 2007 for the Subclass 571 Student visa  upon which she arrived in Australia on 15 September 2007 and thus had no connection with the First Applicant’s application for a Protection visa;

   b)the Departmental file, of which folios 60 – 61 were said to form a part, is an electronic file and its component pages are not identifiable by folio numbers and thus folios 60 – 61 do not exist in a hard copy form until they are printed out from the electronic file, when they are revealed to be the s.438 Certificate itself (folio 60) and a Disclosure Decision Checklist (folio 61), both being of no relevance whatsoever to the First Applicant’s Protection visa application;

   c)the Departmental file CLF2007/121807 formed no part of the material before the Tribunal for the purposes of its review of the Delegate’s refusal to grant Protection visas to the Applicants; and

   d)the Tribunal did not mention or rely upon the s.438 Certificate in reaching its decision to affirm the decision of the Delegate.

1. In other words, the existence of the s.438 Certificate and folios 60 – 61 in electronic form within file number CLF2007/121807 did not have any conceivable impact on the outcome of the review by the Tribunal and there was no procedural unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.

Conclusion

1. Accordingly, the Application fled in this Court on 10 May 2016 must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  4 May 2018