BDW18 v Minister for Home Affairs

[2018] FCCA 2045

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2045

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5H, 5J, 36

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Applicant: BDW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 640 of 2018

Judgment of: Judge Driver

Hearing date: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Underwood of Minter Ellison

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 640 of 2018

BDW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 February 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 19 July 2018. 

3. The applicant is a citizen of China, who arrived in Australia on 14 January 2015 as the holder of a visitor (Class FA) (subclass 600) visa.[1]  The applicant applied for a protection (Class XA) (subclass 866) visa on 23 January 2015.[2]

   [1] Court Book (CB) 75

   [2] CB 1–42

4. In her protection visa application, the applicant claimed that:[3]

   a)after the birth of her second daughter in March 2012 she lost her job, her parents-in-law started to regard her as a useless person, and her family became financially dependent on her husband’s income;

   b)in October 2013, her husband came home late smelling of beer, argued with her and hit her, after which she went to her parents’ home until her mother persuaded her to return;

   c)she talked about her situation with the local community, a psychological doctor and the police but they did not have effective ways to help her, because family violence was out of the range of legal protection in China;

   d)after that, her husband and she often argued, he always hit her and even raped her after hitting her;

   e)as she had nowhere to report [her husband's behaviour] she became more and more desperate;

   f)she knew her arguing had a bad influence on her daughters but did not want to divorce him because of the bad effects on them; and

   g)as she could not bear the family violence anymore she had to escape to Australia.

   [3] CB 40–42

5. On 13 January 2016 the delegate refused to grant the applicant a protection visa.[4]

   [4] CB 75–85

6. On 22 January 2016 the applicant sought review of the delegate’s decision by the Tribunal.[5]

   [5] CB 88–89

7. On 25 January 2016,[6] 15 June 2017[7] and 18 October 2017[8] the Tribunal wrote to the applicant inviting her to provide additional evidence in support of her claims.  The applicant did not provide the Tribunal with any further documents.

   [6] CB 91

   [7] CB 99

   [8] CB 101–102

8. On 19 December 2017 the applicant appeared at a hearing before the Tribunal with the assistance of a Mandarin interpreter.[9]

   [9] CB 112–114

9. On 20 February 2018 the Tribunal made its decision affirming the delegate’s decision not to grant the applicant a protection visa.[10]

   [10] CB 123–135

Tribunal decision

1. The Tribunal found aspects of the applicant's evidence to be “vague, implausible, contradictory, unconvincing and inconsistent with country information”.[11]  The Tribunal found that there were inconsistencies between the applicant’s written claims and her evidence to the Tribunal, and formed the view that she was “not a credible or reliable witness”[12] for the following reasons:

   a)when asked about the applicant husband’s violence, the applicant told the Tribunal that he hit her lightly several times and seriously once, causing her to suffer some bruises.[13]  The applicant gave evidence that she went to a local clinic for treatment, or a hospital if the bruises were bad, once or twice a month for two years.  However, when asked if she sought medical treatment 24 to 48 times over the two years, she responded “not that many” and stated she went “sometimes”;[14]

   b)the Tribunal found that it was implausible that if the applicant had gone to the hospital once or twice a month with bruises, the hospital staff would not have done something about it or brought it to the attention of the Chinese authorities.  The Tribunal found that the applicant’s evidence raised concerns in relation to the credibility of her claims;[15]

   c)the applicant told the Tribunal that her husband became drunk and had sex with her when she did not wish to do so, but that this happened “not that often”.  The Tribunal found this was inconsistent with her claim that her husband always hit and raped her;[16]

   d)the applicant told the Tribunal that her husband never became emotional in front of the children, but instead often hit her when they went to bed or weren’t at home.  The Tribunal found this was inconsistent with the applicant's written claims;[17]

   e)the applicant told the Tribunal that she spoke to police about her husband’s violence but they mediated and told her parents-in-law to stop it from happening.[18]  The Tribunal found this was not consistent with country information.[19]  The Tribunal discussed this information with the applicant but did not accept her explanation as to why the police were unable to help her;[20]

   f)the Tribunal doubted that the applicant would not be able to obtain effective state protection from the police, as this was not consistent with country information.  The Tribunal found that there were inconsistencies in the applicant’s evidence in relation to her contact with police and the assistance they offered here, which raised concerns in relation to the credibility of her claims;[21]

   g)the applicant gave inconsistent and contradictory evidence in relation to her ongoing relationship with her husband and whether she would live with him in China if she returned;[22] and

   h)the applicant’s evidence that she contacted her husband by telephone every few months or once a month was not consistent with her written claims of wanting to escape from her husband due to domestic violence.[23]

   [11] CB 126 at [20]

   [12] At [20]

   [13] CB 127 at [21]

   [14] CB 127 at [22]

   [15] At [23]

   [16] At [24]

   [17] At [25]

   [18] CB 127 at [26]

   [19] CB 128 at [27]–[28]

   [20] CB 128 at [28]

   [21] CB 129 at [31]

   [22] CB 120 at [32]

   [23] At [35]

2. The Tribunal found that the applicant was not a witness of truth and that she fabricated some of her claims and exaggerated others for the purpose of obtaining a protection visa.[24]

   [24] At [38]

3. The Tribunal accepted that the applicant's husband was bad-tempered, abused alcohol and had an extra marital affair, and that in October 2013 he argued with, and was violent towards her.  The Tribunal accepted that this caused the applicant to leave the marital home until she was persuaded to return by her mother, and that afterwards she and her husband had frequent fights.[25]

   [25] CB 130 at [40]

4. However, the Tribunal did not accept that the applicant's husband “always” hit and raped her, that the applicant attended a local clinic or hospital for medical treatment once or twice a month for two years, or that she talked or sought assistance from the local community, “psychological doctor”, community workers or the police.  Having rejected those elements of the applicant’s claims, the Tribunal did not accept the claims that flowed from them.  The Tribunal also did not accept that family violence is outside legal protection in China.[26] 

   [26] CB 130 at [41]

5. The Tribunal was not satisfied that the applicant and her husband were not separated prior to her making a decision to come to Australia in 2014.  The Tribunal accepted that the applicant worked as a kitchen hand and that her husband had asked her for money which she had not provided him with.[27]  The Tribunal accepted that the applicant had no intention of reconciling with her husband and found it implausible her husband would want to resume their marriage after that length of time in circumstances where he was with another woman.[28]

   [27] CB 131 at [42]

   [28] CB 130–131 at [43]

6. The Tribunal did not accept that the applicant’s husband threatened to kill the applicant’s family if she divorced him,[29] that the applicant left China for the reasons claimed, or that she feared returning to China for the reasons claimed.[30]

   [29] CB 130 at [43]

   [30] CB 131 at [44]

7. Having considered all of the applicant’s claims and evidence individually and cumulatively, and in view of its earlier findings, the Tribunal found there was no real chance that the applicant would suffer serious harm for reason of her membership of a particular social group or any other reasons set out in s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act) if she returned to China, “now or in the reasonably foreseeable future”. Therefore, the Tribunal found that she did not have a well-founded fear of persecution, was not a refugee as defined in s.5H of the Migration Act and accordingly did not satisfy the criterion in s.36(2)(a) of the Migration Act.[31]

   [31] CB 131 at [46]

8. The Tribunal considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act and, having considered the applicant’s claims and evidence individually and cumulatively, found that she did not.[32]

   [32] CB 131 at [47]–[50]

The present proceedings

1. These proceedings began with a show cause application filed on 12 March 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   1.I did not go to the interview of Tribunal because I was in bad condition for almost 3 months.  I was physically sick during that period so I did not check my email on time and missed the time of interview.  I hope that I could have another opportunity to detailed my experience and evidence.

   2.The Tribunal does not accept that I face a real chance of seviour harm at the hands of that Chinese government officer.  It is unfair that the Tribunal refused me based on theie understanding, regardless about my situation.  They did not consider my real situation in China.  That Chinese government officer persecuted me.

   3.If I return to China, I will continue to be persecuted by the Chinese local government and I am very scared.  I hope Australia government could protect me and give me another chance to detailed describe my experience and provide more evidence.

   (errors in original)

2. I have before me as evidence the applicant’s affidavit filed with her application and the court book filed on 1 May 2018.  Only the Minister filed written submissions in advance of today’s hearing.

3. I invited oral submissions from the applicant this morning.  She reiterated her claims for protection.  She stressed that she is afraid to return to China.  She also believes that her children, who currently live with her mother in China, are at risk.  She sought the opportunity to gather more evidence in support of her claims.  Those matters go to the merits of the Tribunal decision which are beyond the scope of this proceeding.

4. The grounds in the application are template grounds and are not at all helpful.  Grounds 2 and 3 are almost identical to the grounds in matter SYG676 of 2018.  The applicant told me that her judicial review application had been prepared by a friend as a favour and that she made no payment for that assistance.  The first ground is an assertion that the applicant did not go to the Tribunal hearing because of illness.  The court book however reveals and the applicant herself confirmed that she did attend the hearing.  The second ground refers to a claim of harm that the applicant has never made.  The third ground is an appeal to the merits of her claims.

5. I agree with the Minister’s submissions concerning the grounds of review. 

Ground 1

1. Ground 1 asserts that the applicant was too unwell to attend the Tribunal hearing, and seeks a further opportunity to present evidence. 

2. Ground 1 bears no relationship to the facts of the present matter; the applicant attended a hearing with the Tribunal on 19 December 2017.[33]  Further, there is no evidence to suggest that the applicant sought and was refused an adjournment or additional time to provide evidence or present arguments to the Tribunal for medical reasons or otherwise.  The Tribunal invited the applicant to provide additional documentation in support of her claims by letters dated 25 January 2016,[34] 15 June 2017[35] and 18 October 2017,[36] yet the applicant did not do so.

   [33] CB 112–114

   [34] CB 91–92

   [35] CB 99–100

   [36] CB 101–102

3. In the circumstances, the Tribunal complied with its procedural fairness obligations as set out in Division 4 of Part 7 of the Migration Act.

Ground 2

1. Ground 2 asserts that the Tribunal erred by not accepting the applicant's claim to fear persecution from a “Chinese government official”.  The Tribunal was not required to consider this claim: it did not arise either expressly or squarely on the information before it. 

2. In contrast to the applicant’s assertion that the Tribunal did not consider her “real situation in China”, the Tribunal considered her protection visa claims and made findings which were open to it. 

3. Accordingly, ground 2 goes no further than expressing the applicant’s dissatisfaction with the Tribunal’s decision not to grant her a protection visa, and as such, is an attempt to obtain merits review of that decision.  The Court cannot review the merits of the Tribunal's decision.[37]

   [37] Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–36

Ground 3

1. Ground 3 alleges that the applicant is afraid of persecution by the “Chinese local government” and seeks a further opportunity to provide evidence regarding that claim.  Ground 3 is misconceived in circumstances where the applicant never made this claim.  Properly understood, ground 3 goes no further than expressing dissatisfaction with the Tribunal’s decision and seeking merits review of that decision.

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

2. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

3. As a consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated a wish to seek leave to appeal against my judgment.

4. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     30 July 2018