BGH18 v Minister for Home Affairs

[2019] FCCA 822

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGH18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 822

Catchwords:
MIGRATION – Protection visa – former de-facto included as dependent applicant – grounds do not identify judicial error – Applicant assessed under complementary protection criteria –– no error established.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476

Cases cited:

BEG15 v the Minister for Immigration and Border Protection, [2017] FCAFC 198; 253 FCR 36
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081; FCA 1081; 243 FCR 1; 155 ALD 98
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510
SZGIZ v Minister for Immigration and Citizenship (2013) FCAFC 71; 212 FCR 235; 299 ALR 246; 138 ALD 1

Applicant: BHG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 684 of 2018

Judgment of: Judge Baird

Hearing date: 21 March 2019

Date of Last Submission: 14 March 2019

Delivered at: Sydney

Delivered on: 21 March 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant:

Counsel for the Respondents:

Solicitors for the Respondents: Ms M. Butler, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 684 of 2018

BGH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

Introduction

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made 19 February 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs), made on 13 August 2015 to refuse to grant the Applicant a permanent protection (subclass XA 866) Visa.  The Tribunal decision regarding the Applicant was heard together with the Applicant’s then De-facto partner and the Tribunal gave one decision concerning both persons.

2. The Applicant and the De-facto have applied separately to this Court and both matters were listed today to be heard consecutively.  I note that the De-facto has not appeared, but, in this matter, I am concerned with the claims raised by the Applicant, and I note that the claims are separate in respect of each matter. 

3. The Applicant is a female citizen of China born in the Shandong Province and it appears she resided in the Shenyang Province.  She was born in 1953, which makes her now 65 years old.  She arrived in Australia on 11 September 2007 on a subclass TR 676 tourist visa.  The Applicant left from Beijing Airport using her Chinese passport. 

4. The Applicant lodged an initial protection visa application on 28 September 2007.  That application was refused by a Departmental Case Officer on 24 December 2007.  That protection visa application focused on the Applicant’s practice of Falun Gong.  The Applicant, at that stage, had learnt Falun Gong from her eldest sister in May 2005, and claimed her eldest sister was caught by police in February 2006.  The Applicant claimed fear she would be jailed by the authorities who have suppressed Falun Gong as a cult.  In her interview regarding that visa application, the Applicant stated she had written the application in Mandarin and someone else had translated and read it back to her.  The then Refugee Review Tribunal affirmed refusal of that decision of the Delegate’s on 29 April 2008. 

The Delegate’s Decision

1. Following the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) FCAFC 71; FCAFC 71; 212 FCR 235; 299 ALR 246; 138 ALD 1, which allowed an additional protection visa application where the first application was made and refused before the commencement of the complementary protection provisions in s.36(2)(aa) of the Act, on 1 October 2013, the Applicant lodged the present Visa application. The Applicant did so on the basis of the complementary protection criterion.

2. The Applicant was invited to attend an interview before the Delegate on 29 July 2014.  That interview was held on 1 September 2014, and the Applicant attended and was assisted at that interview by a Mandarin speaking interpreter.  The Applicant included in her Visa application her then De-facto partner as a dependent member of her family unit.  The Applicant claimed that she and he were in a De-facto relationship. 

3. In her Visa application, the Applicant set out her claims as follows (without alteration):

   ·     I am in fear of being abused by my ex husband; fear of being revenged and tortured by the villager and its associates in my current de facto husband’s village back in China.

   ·     My husband’s family has close association with the police in Pingdu city. He would not be punished by the authorities even if I report it to the police.

   ·     The villagers in my de facto husband’s area also have strong political connection to the government officials. The villager had several had several raped his ex-wife. My de facto husband and his brother has bashed up the villager. The villager called his associated police and government officials to arrest his brothers. Both of them have fled. His brother returned to the village and was arrested and sentenced to 8 years in prison. My de facto husband will be in prison as well if he is removed to China. I will face the torture and degraded treatment in China if I am removed to China.

4. On 13 August 2015, the Delegate allowed the making of the second application pursuant to SZGIZ. The Delegate found:

   For the reasons outlined below, I am not satisfied that [the Applicant] is a person in respect of whom Australia has protection obligations under section 36 of the Migration Act 1958 (Migration Act) and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Migration Regulations). Accordingly, I refuse to grant [the Applicant] a Protection (Class XA) visa.

5. The Delegate stated:

   The Applicant may have embellished or may have fabricated her material claims. She had manufactured a new claim since her claim forwarded in the previous PV application was refused by the RRT on 29/04/2008.

   The Applicant’s written claims and presentation at interview were crafted to give the impression that she will be harmed by her ex-husband whom she had been divorced for ten years.

   There is no conclusive information to substantiate that the Applicant would be harmed on her return to China.

6. The Delegate concluded that there were substantial concerns as to the veracity and credibility of the Applicant’s protection Visa claims, and stated that her application is strongly suggestive of an attempt by the Applicant to simply remain in Australia by any means possible.  As I have said, the Delegate refused the Visa application. 

The Tribunal Decision (Joint Decision)

1. The Tribunal heard and determined the Applicant’s application and that of her De-facto together, and issued a joint decision.  The Tribunal noted that only the Applicant presented protection claims in the current Visa application, and summarised the Applicants claims at [28] of its decision, and the Tribunal concluded it was not satisfied that the Applicant was person in respect of whom Australia owes protection obligations.

2. In her written submissions, Ms Butler appearing for the Minister at the hearing before me today, set out the claims for protection set out in the Visa application, and elaboration of the claims at the Tribunal hearing.  Those paragraphs have been read to the Applicant today and accepted by the Applicant as correct.  I repeat them as a convenient summary with further details added from the Tribunal record.

3. The Applicant gave further evidence to the Tribunal at the hearing.  I note that at the hearing before the Tribunal the Applicant was represented by a migration agent, a fact which she has confirmed today.  The Applicant first claimed that her ex-husband and his family would look for her and had previously beaten her because she gave birth to a daughter rather than a son.  The Tribunal then questioned her why she said she had a son in her application, to which the Applicant responded “a boy or a son, my memory is very poor.”   

4. The Applicant confirmed her last problems in China were in 2000 or 2001, and the Tribunal questioned her why she would not return to China if she had no problems. The Applicant responded by saying there were many problems at that time and her ex-husband would beat her and grab her hair and knock her head against the wall.  Although the Tribunal considered that her evidence about the situation with her ex-husband was confused and contradictory at [39] and [40] of the Tribunal decision, it accepted that the ex-husband had been abusive to her up until approximately 2003 or 2005 when they divorced (see decision at [41]).  However, it was not satisfied that there was any real chance the ex-husband would harm or try to harm her. 

5. In relation to the claim to fear harm due to her Falun Gong practice, the Tribunal recorded that the evidence on this issue again was confused (at [45]).  The Applicant had further stated she did not have time to practice Falun Gong anymore as she has to work to support herself.  In any event, the Tribunal found that even if the Applicant did practice Falun Gong at home, this would not be of any interest to the Chinese authorities (at [47]).

6. Further, as the Tribunal accepted that she no longer practiced, it found that there was no chance of any harm to her in China because of Falun Gong.  Overall, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution in China for a Convention reason, nor was it satisfied that there was a risk she would be subject to significant harm on return to China.

7. The Tribunal found that the Full Federal Court in SZGIZ had held that the operation of s.48A as it stood at the time of the Applicant’s Visa application is confined to the making of a further application for a protection visa on the same grounds in substance as that earlier unsuccessful application, in the sense that both applications raise the same central criterion for the grant of protection visa. Thus, applying this reasoning, the Tribunal found it did not have power to consider the criterion in s.36(2)(a), and proceeded on the basis that it can only consider her claims under the complementary protection provisions in s.36(2)(aa) of the Act.

8. The Tribunal summarised the information provided by the Applicant at the hearing at [33]. Commencing at [37], as I have already described, the Tribunal considered the Applicant’s fear of her ex-husband, and concluded at [44] that it had been more than 10 years since the Applicant had departed China. In view of this long passage of time, and the lack of threat or harm to her in her final years in China, the Tribunal was not satisfied that there is any real chance that the Applicant’s ex-husband will harm or try to harm her in China.

9. The Tribunal then turned to the Applicant’s claimed fear in relation to the Falun Gong practice (at [51]). The Tribunal was not satisfied there was a real risk that she would be subject to significant harm on return to China. Thus, the Tribunal concluded, it was not satisfied that the Applicant or the De-facto was a person in respect of whom Australia has protection obligations, and that the Applicant did not satisfy the criterion set out in s.36(2)(a), or s.36(2)(aa), for a protection visa. The Tribunal affirmed the decision not to grant the Applicant the Visa (at [65]).

Grounds of Review

1. Before this Court the Applicant raises two grounds of review as follows (without alteration): 

   [1]    My application was lodged by an agent, and I was not told what they input.

   [2]    I am waiting for the documents from China regarding my protection visa application.

2. I note that the Applicant’s grounds of review do not identify nor provide any particulars or any legal grounds of judicial error or other ground of review.

The Proceeding in this Court

1. The Applicant appeared unrepresented today with the benefit of a Mandarin interpreter.  The Minister was represented by his solicitor, Ms Butler.  At the commencement of the hearing I confirmed with the Applicant that she wished to proceed today, and that she had received a copy of the bundle of documents prepared by the Minister, commonly known as the court book, and which was then received into evidence as exhibit 1.  She confirmed she had received that book.

2. The Applicant also confirmed that she had received the Minister’s submissions, and I confirmed with her and Ms Butler today that she had a copy of the Minister’s submissions before her, and that the interpreter had translated those submissions to the Applicant before the hearing.  I requested the Minister, and the Minister’s solicitor provided, an additional copy of the application to the Applicant, for which I thank the Minister’s solicitor.

3. I informed the Applicant that the purpose of the hearing before the Court today was to establish whether there were any “legal problems” with the decision of the Tribunal; whether it had any problems going to its jurisdiction.  I explained to the Applicant the Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction.  I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.

4. I further explained to the Applicant the consequences that would flow to her if a costs order was made against her.  She confirmed that she wished to continue with her application for judicial review. 

5. The Applicant confirmed that she had attended both prior court dates before the Registrar of this Court, and that she was aware that she had an opportunity to file an affidavit or other documents in accordance with the timetable ordered by the Registrar.  That timetable provided that additional documents be filed and served by 25 May 2018.  The Applicant did not file any evidence, and upon my inquiry of her today, she said she had no documents to provide to the Court.  I gave her another opportunity to provide any documents, and she reiterated that she had no documents to provide to the Court.

6. I asked the Applicant to make submissions, and she said she had nothing to say.  I asked her whether she wished to say anything to support the two grounds in her application, and she said she had nothing to say.  I put to her that the second ground referred to documents, and that she had an opportunity to put documents and had not done so, and she said in response:

   It doesn’t matter.  Just keep it there.

7. Ms Butler for the Minister made submissions in relation to both grounds, and also raised a matter in relation to a s.438 certificate. 

Consideration

Ground 1

1. As the Minister has submitted, there is nothing in the material before the Court to suggest that the Applicant’s Visa application was prepared without her knowledge, consent or authority.  To the contrary, the material indicates that the Applicant was aware of the claims being made.  Her oral evidence to the Department, and to the Tribunal, both indicate this.  At the Tribunal hearing she was represented by a migration agent, and I confirmed this fact with her today.

2. The Tribunal record at [33(a)] reveals that the Applicant confirmed that all of the information in her Visa application was correct.  Further, when the Tribunal put to the Applicant that there was no record of her having previously mentioned abuse by her ex-husband, she responded, indicating that she had mentioned to the previous Tribunal and to her lawyer, as recorded in the Tribunal decision at [33(p)]. 

3. In addition, the Applicant gave evidence in her protection Visa interview with the Delegate that, while her migration agent assisted her in completing her application, the claims made in her application were her own claims, and there were no mistakes or changes she wished to make to her application.

4. In the absence of any material or affidavit from the Applicant, I am entitled to rely on the Tribunal decision record as accurate, and I do so.  There is no other evidence that could suggest that there is any other unauthorised or fraudulent acts by her migration agent:  see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35l; 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510. Ground 1 cannot be made out. No jurisdictional error arises.

Ground 2

1. Ground 2 states that the Applicant is:

   …waiting for the documents for the documents from China regarding my protection visa application.

2. The ground on its face does not articulate any source of jurisdictional error.  There has been nothing submitted by the Applicant today, and, thus, there is nothing from which I am able to ascertain any ground said to give rise, or identifying, any alleged jurisdictional error.  It cannot succeed and I dismiss that ground. 

Section 438 Certificate

1. The Tribunal decision referred to a s.438 certificate, and whilst the matter of the s.438 certificate was not raised by the Applicant, for completeness the Minister has drawn it to my attention. The Minister notes that the certificate was issued by the Department and is referred to by the Tribunal in relation to the Applicant at [36].

2. The Minister accepts that the certificate was invalid as the specified reason for nondisclosure was not capable of grounding a claim of public interest immunity, and refers to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 in that regard. Ms Butler has confirmed that the documents are as described at [36] of the Tribunal’s record, including receipt of the protection Visa application lodgement fee, internal communications about the Applicant’s ability to lodge a second protection visa application, grant of a bridging visa to the De-facto, and unknown identity of her De-facto partner, and confusion caused about him due to some [Departmental] recoding. The Tribunal stated that it:

   …does not find these documents directly relevant to its determination and it has no further regard to them.

3. The Tribunal, at [33(q)], put to the Applicant the fact of the s.438 certificate, but that it did not consider the documents relevant to its determination of her claims.  The Tribunal records that the Applicant responded:

   That she had nothing to say.

4. This matter is, thus, to be distinguished from the decision makers in either MZAFZv Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98, or Singh v the Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554. In any event, no jurisdictional error can arise out of the Tribunal’s treatment of the certificate. It cannot be said that the Tribunal acted on the certificate, or that the nondisclosure of the documents resulted in any practical injustice, see the recent decision of the High Court of Australia, SZMTA at [48] and, also, BEG15 v the Minister for Immigration and Border Protection, [2017] FCAFC 198; 253 FCR 36 (noting that SZMTA also was a decision in relation to BEG15).

5. The Tribunal expressly stated it did not have regard to the documents, and the documents were irrelevant to its decision making task.  As the plurality said in SZMTA, there is no realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. 

Conclusion

1. I conclude that the Applicant has not made out any other grounds of review and that there is no jurisdictional error.  The application must be dismissed and the Minister be awarded costs.

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

Date: 4 April 2019