BPO16 v Minister for Immigration

[2018] FCCA 477

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPO16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 477

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal made its own findings separate to a previously constituted Tribunal – whether the Tribunal should have considered the Refugees Convention criterion – s.438 certificate – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48, 438, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1
Minister for Immigration and Border Protection v CZQ15 [2017] FCAFC 194
Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197
BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198
WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; (2014) 230 FCR 130

First Applicant: BPO16

Second Applicant: BPP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1671 of 2016

Judgment of: Judge Nicholls

Hearing date: 12 February 2018

Date of Last Submission: 12 February 2018

Delivered at: Sydney

Delivered on: 6 March 2018

REPRESENTATION

Applicants: Second applicant appeared in person and on behalf of the first applicant

Solicitors for the Respondents: Mr T Galvin of Minter Ellison Lawyers

ORDERS

1. The application made on 29 June 2016 is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1671 of 2016

BPO16

First Applicant

BPP16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 June 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 16 June 2016 affirmed the decision of the delegate of the Minister (“the delegate”) to refuse protection visas to the applicants.

2. In evidence before the Court is the following:

   a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

   b)The affidavit of Jennifer Louise Strugnell, Solicitor, made on 29 January 2018 with relevant annexure and exhibits.

Background

1. The first applicant is a citizen of the People’s Republic of China (CB 13). He first applied for a protection visa which was received by the Minister’s department on 14 January 1997 (CB 1 to CB 27). The application was refused by a delegate of the Minister on 16 April 1997 (CB 33 to CB 37). The Refugee Review Tribunal affirmed the delegate’s decision on 12 May 1998 (CB 39 to CB 43).

2. The second applicant is also a citizen of the People’s Republic of China (CB 59). The second applicant applied for a protection visa which was received by the Minister’s department on 27 July 1998 (CB 47 to CB 72). However, the second applicant had first entered Australia and subsequently applied for a protection visa, using a falsified passport from the Republic of Korea (CB 218.3). Her application was refused by a delegate of the Minister on 26 October 1998 (CB 79 to CB 81). The Refugee Review Tribunal affirmed the delegate’s decision on 25 May 1999 (CB 86 to CB 91).

3. Pursuant to the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”), the applicants made a second application for protection visas which was received by the Minister’s department on 25 March 2014 (CB 95 to CB 140). They were assisted by a registered migration agent (CB 136). The applicants completed a “Form 866B” stating they were both included in the same application, but they also each completed a “Form 866C” and made their own claims to protection.

4. In this application, the first applicant claimed to fear harm on the basis that he may be “unable to claim the compensation” for a “residential unit being demolished” for “redevelopment by the authorities” which could leave him homeless. Further, the first applicant claimed to be in fear of being unable to “register” himself on the “Hukou (household registry)” and of being “denied” the opportunity to return to his previous place of employment (CB 113).

5. The second applicant claimed to have experienced harm in China as a “Korean ethnic” as she was “unable to get a job to work in the Chinese government” and was also unable to “access further education” (CB 128). She claimed to fear harm from the Chinese authorities on the basis that she may be unable to claim her right to “land which was expropriated by the authorities” (CB 128). She also claimed that the Chinese authorities had taken her farmland “without fair compensation” (CB 129). Further, and due to her ethnicity, if she were to return to China, the second applicant would not be able to get a job and would be “mistreated by the authorities” (CB 129).

6. On 21 November 2014, a delegate of the Minister, in separate decisions, refused to grant the applicants protection visas (CB 178 to CB 202 and CB 204 to CB 228). The applicants applied for review to the Tribunal on 27 November 2014 (CB 230 to CB 232). The applicants were invited to a hearing before the Tribunal on 18 May 2016 (CB 243 to CB 252). The second applicant attended the hearing before the Tribunal, the first applicant did not (CB 256 to CB 259).

7. On 18 May 2016 following the hearing, the Tribunal wrote to the applicants’ representative via email indicating that the first applicant had until “17:00 on 19 May 2016” to provide the Tribunal with the necessary evidence to support his non-attendance at the Tribunal hearing otherwise (CB 263.4):

   “If no such evidence is provided and/or the Tribunal is not satisfied of the reasons about your non-attendance, the Tribunal will go ahead and make a decision without inviting you to another hearing.”

8. The applicants’ representative responded to the Tribunal via email on 18 May 2016 following the hearing, indicating that the first applicant was “sick” but was unable to provide a medical certificate. The Tribunal responded reiterating that the first applicant had until “5pm” on 19 May 2016 to provide the necessary evidence. The first applicant did not provide any such evidence to the Tribunal (see CB 261 to CB 268).

9. The Tribunal affirmed the delegate’s decisions on 16 June 2016 (CB 274 to CB 284). The Tribunal noted that the applicants’ application would be assessed against the complementary protection criterion (s.36(2)(aa) of the Act) or the family membership criteria in s.36(2)(b) or (c) of the Act while he, or she, remained in the migration zone.

10. The Tribunal then set out the first and second applicants’ migration history and claims to protection ([11] at CB 276 to [22] at CB 279). The Tribunal noted the different claims to protection the first applicant had made as between his first protection visa application, and his second protection visa application. The Tribunal also noted that the delegate’s decision record indicated that the first applicant, amongst other things, had said that “[h]e did not know the claims made in the first application for a protection visa and at that time, he had no fear in returning to China” ([14]a. at CB 277).

11. The Tribunal also noted the different claims to protection the second applicant had made as between her first protection visa application and her second protection visa application. The Tribunal also noted that the delegate’s decision record indicated that at the interview the second applicant had said that “[s]he did not know the claims that were made in the [first] application” ([21]a. at CB 279).

12. The Tribunal noted that the first applicant did not attend the hearing and had “decided to make a decision in relation to [him] on the basis of the available information” ([25] – [27] at CB 280). The Tribunal was satisfied that the first applicant had “a fair opportunity to put his case in full before the Tribunal” ([28] at CB 280). On the basis of the information available to the Tribunal, it was not satisfied that the first applicant “ha[d] suffered any of the claimed harm”, or that there was a real risk that he would suffer significant harm on return to China ([29] at CB 280).

13. At the Tribunal hearing, the second applicant gave evidence, amongst other things, that she came to Australia in 1998 using a “fake” Korean passport, but that she did not know that it was “fake”, or a Korean passport as an “agent did all for her” ([31] at CB 281). The second applicant explained why she had not looked at the passport prior to her arrival in Australia. The Tribunal raised with the second applicant its concerns about her coming to Australia on a false passport “which could suggest a willingness and ability to mislead the authorities, as well as raise doubts about her claims and credibility” ([32] at CB 280). The Tribunal did not accept the second applicant’s explanations and found that she did know that she was travelling on a “fake passport” ([33] at CB 281).

14. The Tribunal also discussed the second applicant’s first protection visa application with her at the hearing. The Tribunal was not persuaded by the second applicant’s explanations and found that she knew that she was “lodging a protection visa application on the basis of a false passport and name, suggesting a willingness and ability to be untruthful” ([35] at CB 281 to CB 282). The Tribunal found the second applicant’s explanations that she “did not know” the claims that were in her first protection visa application were “unconvincing”, and suggested “fabrication and a willingness to make untruthful claims, raising serious doubts about the [second] applicant’s credibility” ([38] at CB 282).

15. The Tribunal also discussed the second applicant’s claims to fear harm as they appeared in her second protection visa application. The Tribunal found the second applicant’s evidence in relation to harm she claimed she had suffered, to be “vague, inconsistent and lacking in details”. The second applicant also required “substantial prompting” which raised doubts about the veracity of her claims ([39] – [41] at CB 282).

16. The Tribunal also raised with the second applicant at the hearing, that she had obtained a new Chinese passport which would indicate that she was able to satisfy the Chinese authorities about her identity. This raised doubts surrounding her claim in relation to the deregistration of the hukou ([42] at CB 282). The second applicant indicated that her sister may have “bribed someone” in the public service bureau but the Tribunal was “not persuaded” by her explanations ([42] at CB 282).

17. The Tribunal was not satisfied that the second applicant had suffered “any of the claimed harm” ([44] at CB 283). The Tribunal found that there was not a real risk of the second applicant suffering significant harm on return to China and she also did not meet the criterion at s.36(2)(aa) of the Act for the grant of the visa ([50] – [54] at CB 284).

The Application to the Court

1. The grounds of the application to the Court are in the following terms:

   “1. The Tribunal failed to make its own findings, namely, the Tribunal has been relying the previous different constituted Tribunal findings.

   2. The Tribunal failed to apply the Refugee Convention Criterion to my claims.”

   [Errors in original.]

Before the Court

1. The parties first appeared before the Court on 25 August 2016 where a Registrar made various orders, by consent, including that the applicants be given the opportunity to file any amended application and evidence by way of affidavit. The applicants filed no further documents in this regard.

2. The parties again appeared before the Court on 8 December 2016, where a Registrar made orders which, amongst other things, set the matter down for final hearing and provided the parties with the opportunity to file written submissions. The Minister filed written submissions on 5 February 2018. The applicants filed no written submissions.

Consideration

1. At the hearing, the second applicant appeared in person. She was assisted by an interpreter in the Mandarin language. There was no appearance by the first applicant. The second applicant explained that the first applicant was her partner, and that he could not come to Court because he was “working”. The second applicant explained that the first applicant “knew” of the Court event, and that she would attend and that she would speak on his behalf.

2. The applicants’ submissions before the Court were as follows. One, that the second applicant had made two applications for a protection visa. In relation to the first application, her migration agent had filled out that application, and she did not know what claims had been made in it. This matter is dealt with below.

3. Second, the second applicant read, from her mobile phone, what she said was a “letter” that she wanted to read to the Court. In essence, what she stated was that the applicants have been in Australia for over 20 years and that they had made a “contribution” to life in Australia. They had worked and paid taxes. Further, there were many clients of their business who could have written “letters of support” for them, but they elected not to pursue that course. Further, the second applicant claimed that she had been “bullied” in China by other people, and that if the Court did not allow them to remain in Australia, it would be a “death sentence” if they were to return.

4. The applicants’ submissions made no assertion of legal error on the part of the Tribunal. It is trite to say that the Court has no power to grant the applicants protection visas. As I sought to explain to the second applicant, the role of the Court was to consider what the Tribunal had done, and to ensure that it had reached its conclusion without making a “legal mistake”.

5. In essence, the applicants’ submissions to the Court did not rise above a request for the Court to intervene and substitute its own findings of fact for those of the Tribunal. That is, the applicants’ submissions sought impermissible merits review.

6. When directed to the grounds of the application to the Court, the second applicant, ultimately, told the Court that these grounds had been drafted for her by a “lawyer”. It is clear that she had no knowledge of what had been written for her and for the first applicant.

7. Ground one asserts that the Tribunal relied on findings made by a previously constituted Tribunal, and did not make its “own” separate findings. It is to be noted, as set out above, that both applicants had made previous applications for protection visas which were separately considered by other delegates of the Minister, and other previously constituted Tribunals.

8. On the evidence before the Court, the claim in ground one fails at a factual level. The Tribunal did refer in its decision record to claims made previously by the applicants, including claims that were made before previously constituted Tribunals. This was appropriate of the Tribunal to do. It was necessary to identify all claims made by the applicants since their arrival in Australia. Any failure by the Tribunal to deal with all claims to protection would otherwise, possibly, have led to jurisdictional error.

9. However, there is nothing in the Tribunal’s decision record to support the proposition that the Tribunal considered itself bound by those findings, or “simply” applied them to the consideration of the application before it. The Tribunal made findings on the material before it. The findings were reasonably open to the Tribunal, and were probative of the material before it. Ground one is not made out.

10. Ground two asserts that the Tribunal failed to “apply” the Refugees Convention criterion to the applicants’ claims.

11. On the evidence before the Court, the applicants had previously applied for protection visas on the basis of the Refugees Convention criterion (s.36(2) of the Act at the relevant time). Their claims were assessed and determined on this basis. They were barred by s.48 of the Act from making another application for protection relating to this criterion. As a result of SZGIZ, the only criterion available to the applicants was the complementary protection criterion (that is, s.36(2)(aa) of the Act). This criterion is what the Tribunal considered and was only required by the Act to consider (Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 (“SZVCH”)). The fact that the delegate did not confine his or her consideration to this criterion only does not reveal jurisdictional error in the Tribunal’s decision (SZVCH at [44]). In all, ground two is not made out.

12. As a model litigant, the Minister also raised the issue in relation to the second applicant, that the Minister’s department’s file contained a certificate issued pursuant to s.438 of the Act (“the s.438 certificate”). The s.438 certificate is annexed to the affidavit of Ms Strugnell in evidence before the Court. The s.438 certificate is said to relate to folios 58 and 59 of the Minister’s department’s file and the documents therein (“the documents”) ([4] of Ms Strugnell’s affidavit).

13. Before the Court, the Minister sought to read the affidavit of Ms Strugnell, and also sought to tender the documents that were exhibited to that affidavit, and presented in a sealed envelope (see Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”) at [67]).

14. Initially, there was no objection by the second applicant to the tender of the documents. The hearing proceeded on the basis of the Minister’s submissions in relation to the s.438 certificate. At the end of the hearing, when asked whether she had anything further to say to the Court, the second applicant made a number of statements as set out above. However, she also complained that it was “unfair” of the Minister to have provided the affidavit of Ms Strugnell to the Court, because she did not have an opportunity to consider it.

15. I did consider whether it was appropriate to give the applicant further time to consider what is set out in the affidavit of Ms Strugnell. However, the Minister accepted that the s.438 certificate to which the affidavit refers was invalid for the reasons set out in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”) at [28] – [32]). In all the circumstances (see further below), it was difficult to see what the second applicant could have raised against the tender of the documents.

16. As noted above, the folios have been presented in a sealed envelope consistent with what was said in Singh at [67].

17. The Minister sought to tender the documents into evidence. The folios from the departmental file were admitted into evidence on the basis that they were relevant to the question of whether the applicants were denied procedural fairness. Although not raised by the applicants’ grounds, the existence of the s.438 certificate, and the folios to which it referred, are relevant to whether the Tribunal fell into jurisdictional error (Minister for Immigration and Border Protection v CZQ15 [2017] FCAFC 194 (“CQZ15”) at [64] and [80] – [87], and in particular at [88] and see also Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 at [63], [70], [76] and [80] and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 at [30]).

18. In relation to the admission of the documents, and in light of the second applicant’s subsequent statement as set out above, I note that the documents themselves, or their subject matter, were not the subject of any dispute before the Tribunal.

1. The documents in question are the expert reports of the examination of the second applicant’s Chinese passport (not the “fake Korean passport”, but the passport that she presented with her second application for a protection visa), and her New South Wales drivers licence. Both documents were found to be genuine.

2. As mentioned above, the second applicant came to Australia (and also subsequently applied for her first protection visa) “using a fake Korean passport”. She gave evidence of this to the Tribunal (see [31] at CB 281). On the evidence before the Court, the second applicant applied for, and obtained, a Chinese passport from the Chinese authorities after her arrival in Australia. The Tribunal did make reference to this in its decision record ([42] at CB 282).

3. However, the Tribunal accepted this was a genuine passport as the second applicant had asserted, and the genuineness of the passport was not in dispute before the Tribunal ([42] at CB 282).

4. In this light, the contents of the folio documents did not impact on the outcome of the Tribunal’s review. I accept the Minister’s submissions that it is reasonable to infer that the Tribunal did not “act” on the folios covered by the s.438 certificate (CQZ15 at [65] and MZAFZ at [40]).

5. It is important to note that the folios also do not relate to the “fake Korean passport” which the second applicant used to travel to Australia. The second applicant gave evidence to this effect to the Tribunal. The Tribunal accepted this evidence.

6. There is no reference to the New South Wales drivers licence in the Tribunal’s decision record. Nor was this an issue in the review. Nothing in the second applicant’s claims to protection related to her New South Wales driver’s licence.

7. Even if the Tribunal had had regard to the documents covered by the s.438 certificate, there was, in the circumstances, no jurisdictional error due to a denial procedural fairness. There was no “information” in the documents that would have assisted the second applicant’s claims to protection. There was also no “information” adverse to the second applicant’s claims to protection.

8. Further, I cannot see that the second applicant suffered any practical injustice in relation to the Tribunal’s review as a result of the existence of the documents on the Minister’s file (WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137; (2014) 230 FCR 130).

9. Before the Court, the applicants have not advanced any argument that they were denied the opportunity to advance their case before the Tribunal, as a result of the existence of the documents or the Tribunal’s failure to refer to them (CQZ15 at [67] and [85]). Importantly, there was nothing from the second applicant to indicate that she sought more time from the Court in relation to the tender of the documents for this purpose.

10. The s.438 certificate is, in the circumstances, invalid. However, the folios covered by the s.438 certificate are “incapable of having any bearing on the decision of the Tribunal” (CQZ15 at [69]). The nondisclosure of the s.438 certificate therefore did not deprive the applicants of the opportunity to present and promote their claims to the Tribunal.

11. As noted above, while the Tribunal discussed the second applicant’s “new Chinese passport” with her, the question of the genuineness of the passport was never at issue.

12. I note for the sake of completeness, and as set out in the Minister’s written submissions at [38] and [39], that [33] (at CB 281) of the Tribunal’s decision record does contain a typographical error in the first sentence. When the first sentence is read in the context of the Tribunal’s reasoning as a whole, it should be read as “[t]he Tribunal has considered the applicant’s explanations but finds them unpersuasive”.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision as it is said to arise from the grounds of the application, nor in light of the Minister’s reference to the s.438 certificate. It is appropriate that the application to the Court be dismissed. I will make the appropriate order.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 March 2018