BML16 v Minister for Immigration - [2018] FCCA 1750

FEDERAL CIRCUIT COURT OF AUSTRALIA

BML16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1750

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:
Migration Act 1958 (Cth)

Cases cited:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
CWR16 v Minister for Immigration and Border Protection [2018] FCA 859
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451
W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 103; (2002) 68 ALD 69

Applicant:

BML16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1543 of 2016

Judgment of:

Judge Barnes

Hearing date:

20 June 2018

Delivered at:

Sydney

Delivered on:

20 June 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1543 of 2016

BML16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 1 June 2016. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The background to this application is that the Applicant, a citizen of China, arrived in Australia in February 2007 as the holder of a student visa which was cancelled in December 2007.
In May 2008 the Applicant made his first protection visa application. The application was refused. The decision was affirmed by the then Refugee Review Tribunal in August 2008. In December 2008 this Court (then the Federal Magistrates Court) remitted the matter to the Tribunal for reconsideration. In March 2009 the Tribunal affirmed the delegate’s decision in relation to that first protection visa application.
In April 2014 (following the Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235) the Applicant made a further protection visa application. That application was refused by a delegate of the First Respondent in December 2014.
The Applicant sought review by the Tribunal in January 2015. That review is the subject of these proceedings.
The Applicant attended a Tribunal hearing on 17 May 2016. The only evidence before the Court of what occurred at that hearing is the Tribunal’s account in its reasons for decision.
In its reasons for decision the Tribunal dealt with the circumstances in which an applicant could make a second protection visa application, referring to the fact that (as held in SZGIZ) s.48A of the Migration Act 1958 (Cth) (the Act) did not prevent another application on complementary protection grounds. It stated that in these circumstances the application would be considered only on complementary protection grounds.
The Tribunal referred to the fact that it was necessary to have regard to policy guidelines and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) to the extent they were relevant to the decision under consideration.
The Tribunal outlined in detail the claims made by the Applicant, commencing with the claims in his first protection visa application that he and his family belonged to an underground Christian church in China, that they had suffered many problems because of their religious beliefs and that he feared harm if he returned to China because of his religion.
The Tribunal recorded that the Applicant had claimed that he and his father had been arrested in 2005 at a church service in his home and were beaten and detained for two weeks until a bribe was paid for their release. He claimed that his father was arrested again in 2006 and stripped of his Communist party membership due to his involvement in the church. In his second protection visa application the Applicant claimed that his father was also arrested in April 2008 and detained for a year in a labour camp, although the reasons were not specified. He also made claims that his brother was detained in October 2010 after being involved in a land dispute, that his father had died because of cancer in July 2012 (which the Applicant also attributed to persecution from the local government and the police) and that the Applicant and his mother, who was also in Australia, feared returning to China. The Applicant’s mother is not the subject of the Tribunal decision or a party to these proceedings.
The Tribunal also referred to the fact that in the delegate’s decision of December 2014 (which the Applicant provided to the Tribunal) the delegate had recorded the Applicant’s claims at the departmental interview, including that he no longer had contact with his family; that the family land was appropriated by the village head on account of the family’s Christian religious profile; that he had not read the Bible for some two to three years; and that he feared being arrested if he returned to China because of his Christianity.
The Tribunal outlined the Applicant’s evidence at the Tribunal hearing, including his reiteration of his claim that he was persecuted because of religious beliefs; the fact that when asked what denomination of Christianity he and his family belonged to the Applicant replied: “in our local place it was hard to make clear”; and that he denied that they were Catholics. It recorded his claims to have been baptised in China, the fact that he could not remember if he had been baptised more than once and his evidence when asked about other events and activities in China (which the Tribunal set out in some detail). The Tribunal also asked the Applicant about his current church activities and recorded his evidence of limited involvement in that regard, his lack of knowledge about the name or denomination of the church he claimed he attended and the absence of supporting documentary evidence.
It recorded that it asked the Applicant about whether his claims were that he would practise Christianity in China, that he did not suggest he would attend any church in China, that he said there were no other reasons to take into account and that the main reason for his fear was his Christianity.
The Tribunal also recorded that the Applicant clarified that his claim regarding the land confiscation was related to his parents’ Christianity.
The Tribunal put to the Applicant aspects of DFAT country information in relation to Christianity in China and gave him an opportunity to respond to this information, including in writing. The Applicant said he would like to respond in writing within a week. The Tribunal gave that opportunity to the Applicant. At the time of its decision (some fifteen days after the hearing) it had received no further submission or response from the Applicant.
At the hearing the Tribunal also put to the Applicant a number of inconsistencies between his written and oral evidence in relation to issues such as whether he was arrested and taken away in May 2005 as well as his parents and whether both his father and mother were arrested in June 2006. The Tribunal also raised the inconsistency in the Applicant’s evidence as to whether the land seizure issue was related to his parents’ Christianity or not. The Applicant blamed his bad memory for such inconsistencies.
The Tribunal specifically raised with the Applicant its concern that he was not a Christian, especially given his evidence that he did not attend church and was not in “the mood” to do so and whether therefore he would not attend church if he returned to China and hence would not be recognised as a Christian in China. The Applicant was recorded as having said: “if you don’t believe me I have nothing to say”. When the Tribunal again put this issue to the Applicant he had nothing to add.
The Tribunal recorded that it concluded the hearing by indicating to the Applicant that it was concerned that he was not a Christian. It indicated that he could address these concerns in any further written submissions to be provided in the next seven days and that if he needed more time to provide further submissions or other evidence he could make a request through the registry. There is no evidence before the Court or suggestion from the Applicant of any such request to the Tribunal registry. The Applicant did not provide post-hearing written submissions to the Tribunal.
The Tribunal found that the Applicant was not a witness of credit. In particular, it did not accept that he was ever a Christian or that he would practise Christianity if he returned to China. It gave a number of reasons for this finding. It found the Applicant’s evidence unpersuasive and unconvincing in several respects, including his inability to explain whether his baptism made a difference to him in his practise as a Christian; his inability to explain what denomination he and his family belonged to; his limited evidence as to activities (other than services) in which he was involved; his long pause before he suggested he was also involved in other activities; and the fact that when asked to explain what he did he said: “I did whatever they told us to do” and could not recall what these “things” were. In addition, the Tribunal had regard to the Applicant’s propensity to invoke a poor memory when he was not able to explain discrepancies and his non-response to Tribunal concerns that he would not be recognised as a Christian if he returned to China.
The Tribunal also took into account inconsistencies between the Applicant’s written statement and his oral evidence. It stated that these inconsistencies included, but were not limited to, whether or not the Applicant was arrested when his parents were said to have been arrested in May 2005; whether both his parents or just his father was arrested in June 2006; and whether family land was sold off by the local village head for development or whether it was seized because of his parents’ Christian activities.
As outlined earlier in its reasons, the Tribunal found that the Applicant’s responses when it raised its concerns about these inconsistencies were “not reasonable to believe as true”.
The Tribunal also had regard to the fact that the Applicant had no corroborative evidence that he had ever practised Christianity in Australia, despite his claims in that respect.
In these circumstances the Tribunal did not accept the Applicant was or had ever been a Christian. It found, in effect, that he would not practise Christianity if he returned to China or be recognised as a Christian in China. It did not accept that either the Applicant or his parents had practised Christianity in the underground churches, including in their own home, or that they had been arrested as claimed, or that the Applicant was given warnings in June 2006. Hence, it did not accept that his parents’ land was seized because of their Christianity.
The Tribunal referred to the fact that, as clarified at the hearing, there was only one basis on which the Applicant claimed to fear significant harm if he returned to China, that being his Christianity. As it did not accept such claim, or that the Applicant would practise Christianity in China and be recognised as such, it was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to China there was a real risk he would suffer significant harm because he was a Christian.
The Tribunal concluded that the Applicant did not meet the complementary protection criterion and affirmed the decision under review.
The Applicant sought review by application filed on 20 June 2016. He did not file any amended application, written submissions or any evidence (beyond the Tribunal decision).
When given the opportunity today to make oral submissions about any concerns he had with the Tribunal decision or procedures, the Applicant had nothing to say. When I again asked the Applicant if he had any concern about the Tribunal decision or procedures, he responded “no”. He was unable to explain the basis on which he sought review. He was given the opportunity to elaborate on the grounds in his application. He told the Court that he had nothing to say. After oral submissions for the Respondents the Applicant had nothing to say in reply. Nevertheless, I have considered the grounds in the application.
Ground 1 is a contention that the Tribunal “came to its conclusions on the basis of independent country information that the Tribunal accepted was inspired by the government of China”. It is asserted that the Tribunal should have allowed the Applicant to provide the Tribunal with additional material that did not support the views expressed in the independent country information accepted by the Tribunal and which suggested that things might not be as “sanguine” as the Tribunal had determined. The ground continued:
This information could come from reliable sources such as Amnesty International and it could be well documented at the hearing before the Tribunal if the applicant had a chance.
The relationship of this ground to the Tribunal decision and to what the Tribunal recorded occurred at the Tribunal hearing is not apparent. The Tribunal did not simply come to its conclusions on the basis of independent country information. Rather it made an adverse credibility finding for the reasons referred to above. It did refer to independent country information from DFAT (consistent with Ministerial direction), but it recorded that it put this to the Applicant at the hearing and such material did not form the basis for its decision. Further, there is nothing in the material before the Court to suggest that the Tribunal accepted that the reports from DFAT were “inspired” by the government of China.
Insofar as the Applicant’s concern is that he should have had an opportunity to put further material before the Tribunal, he was given the opportunity to provide further submissions or other evidence within seven days after the hearing and to make a request for additional time. There is no basis for any contention that the Applicant was not given the opportunity to provide different or alternative information. He accepted such invitation orally at the hearing, but did not avail himself of the opportunity.
There is no evidence that there was any information from sources such as Amnesty International before the Tribunal. It was for the Applicant to place whatever material he wished to place before the Tribunal. In the circumstances of this case the Tribunal was not obliged to make any inquiry into country or other information that was not before it. It is for the Tribunal to determine the country information to which it has regard and the weight to be given to such information (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]). It was not only entitled to have regard to DFAT reports, but was required to take them into account so far as relevant by virtue of Direction No. 56.
Ground 1 is not made out.
Ground 2 is a generally expressed claim that the Tribunal failed “to consider the reality of persecution”. It is contended that the Tribunal did not consider the reality of the chance of persecution to the Applicant and that this “prevented it from having a rational basis to determine the chance of persecution of the applicant in the future” and resulted in it “not considering an essential, substantial matter of the applicant’s claim”. Reference is made to W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 103; (2002) 68 ALD 69 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136. It is asserted that the Tribunal cannot limit its determination to the case put by the Applicant and must deal with the claim raised by the evidence.
The ground does not identify any particular claim said to have been made by the Applicant or raised by the material that was not considered by the Tribunal, except insofar as it refers to a failure to consider the reality of “persecution”. However the Tribunal understood and considered the Applicant’s claim that he feared significant harm in China because of his religion as was relevant under the complementary protection criterion (limiting itself to consideration of the complementary protection criterion consistent with SZGIZ). As it rejected the claim that the Applicant was or had ever been a Christian, it was not necessary for the Tribunal to consider whether Christians faced significant harm in China.
Further, it is apparent on the Tribunal reasons that through the course of the Tribunal hearing the Tribunal endeavoured to clarify whether the Applicant was seeking to claim a fear of significant harm based on the fact that his parents’ land had been seized. The Applicant told the Tribunal that the land seizure was related to his parents’ Christianity. The Tribunal rejected the claim as to their Christianity and hence did not accept that the Applicant’s parents’ land was seized because of his parents’ Christianity. In this way it addressed the manner in which this claim was ultimately put to it.
Insofar as the Applicant disagrees with the findings and conclusions of the Tribunal, he goes no further than seeking impermissible merits review. It has not been established that the Tribunal failed to consider an integer of the Applicant’s claim, whether made expressly or arising clearly on the material before it (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1).
This ground is not made out.
The third ground is that the Tribunal did not take into account the sort of persecution the Applicant would face if he returned to China. It is claimed the Applicant told the Tribunal about that, that he produced evidence and that “more evidence was available if the Tribunal allowed the applicant to make it”.
As indicated, the Tribunal did not accept that the Applicant was a Christian. Hence any significant harm that Christians may face in China did not have to be addressed in its findings. The Tribunal considered the claims and evidence before it and made its ultimate findings on the basis of comprehensive adverse credibility findings. The Applicant’s claim that he was not allowed to provide further evidence is directly contradicted by the decision record and the Tribunal’s account of what occurred in the hearing.
There is no transcript of the Tribunal hearing in evidence before the Court and nothing to suggest that the Applicant was not given the opportunity to provide submissions and further evidence, not only in relation to the sort of harm Christians would face in China but also in relation to the matters raised with him by the Tribunal. This ground is not made out.
The last ground is that the Tribunal’s satisfaction was reached “in the absence of probative material and/or logical grounds and was therefore not rationally formed”. It is asserted that jurisdictional error is revealed in the Tribunal proceeding on the basis that the facts put forward by the Applicant “did (and I think a “not” may be missing here) cause it to be satisfied as to the applicable criteria”.

To the extent that this is to be taken as an assertion that the Tribunal made its findings without evidence, as contended for by the First Respondent, to succeed on a no evidence ground the Applicant must show that there was no evidence at all upon which relevant Tribunal findings could have been based (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321). That is not the present situation. In this case the Tribunal’s findings were based on the Applicant’s own evidence and inadequacies and inconsistencies therein. Such a contention has not been made out.
Insofar as there is a suggestion of illogicality or an absence of a logical connection between the evidence and the Tribunal’s credibility findings, it was reasonably open to the Tribunal on the material before it to engage in the process of reasoning in which it engaged and to make the credibility findings it made on material before it which was relevant, probative material.
I bear in mind that credibility findings are not immune from review (as the Full Court of the Federal Court pointed out in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 and see CWR16 v Minister for Immigration and Border Protection [2018] FCA 859). However in this case, as set out above, the Tribunal took into account a number of factors in reaching an adverse credibility finding. Taken as a whole these factors provided a basis for the decision and could not be said to be findings at which no rational or logical decision-maker could arrive on the same evidence in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] per Crennan and Bell J. It has not been established that the Tribunal’s adverse credibility findings were illogical or that they lacked a probative basis such as to demonstrate jurisdictional error.
Nor has legal unreasonableness been established, whether in the outcome, the fact-finding process or the exercise of a discretionary power. The Tribunal’s decision does not lack a logical, rational basis. The credibility findings were not made on the basis of trivial inconsistencies that did not provide a reasonable basis for the ultimate adverse credibility finding. There was an evident and intelligible justification for the Tribunal decision having regard to the particular decision, its nature and quality, and the subject matter, scope and purpose of the statutory power of the Tribunal. The Tribunal’s decision was based on logically probative material before it and its express findings.
Nor is there anything to suggest any other species of jurisdictional error (for example as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451) or any failure to afford procedural fairness.
Ground 4, whether as pleaded or taken at its widest, is not made out.
As no jurisdictional error has been established the application must be dismissed.
The Applicant has been unsuccessful. It is appropriate that he meet the Minister’s legal costs. The amount sought is reasonable in light of the nature of this and other similar matters.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate:

Date: 2 July 2018