BRM15 v Minister for Immigration & Border Protection

[2015] FCCA 3287

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRM15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 3287

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) s.36
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: BRM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2285 of 2015

Judgment of: Judge Emmett

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 9 December 2015

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter:

Solicitor for the Respondents: Mr Tom Galvin
(Minter Ellison Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2285 of 2015

BRM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 18 August 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 24 July 2015 and handed down on 27 July 2015 (“the Tribunal”).

2. On 24 September 2015, the applicant attended a directions hearing before a Registrar of the Court.

3. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 15 October 2015, as well as submissions in support, by 16 October 2015.

4. At the request of the first respondent, the matter was listed today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant.

1. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

2. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

3. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the Tribunal’s decision, as follows:

   “FACTUAL BACKGROUND

   4. The applicant is a Chinese citizen who arrived in Australia on 5 January 2014: CB 12-13.

   5. The applicant lodged an application for a Protection (Class XA) visa (protection visa) on 28 February 2014, along with a number of other documents in support of that application: CB 1-55.  One of those supporting documents was a document titled 'My Statement': CB 26-29. 

   6. In that document, the applicant stated that in September 2013 his wife fell pregnant with their second child, with an ultrasound revealing that child was a boy: CB 26.  (Their first child was a girl.)  The applicant further stated that due to the fear of being forced to have an abortion, his wife went into hiding at her aunt's home, following which family planning officers attended the applicant's home in Hanshou County to take his wife to the hospital for a pregnancy screening:  CB 26-27.  The applicant informed the family planning officers that he did not know of his wife's whereabouts: CB 27.  The officers again attended the applicant's home the following week, but she was still in hiding: CB 27.  On 10 November 2013, the applicant returned home to find his wife 'lying in bed with her tears streaming down' because the family planning officers had found her at her aunt's home and forcibly took her to hospital for an examination: CB 27.  On examination, the wife's pregnancy was detected and she was forced to undergo an abortion: CB 27.  The applicant was also informed that he would be forced to undergo surgical sterilisation: CB 27.

   7. By letter dated 13 May 2014, an officer of the Department of Immigration and Border Protection wrote to the applicant inviting him to attend an interview for his protection visa application to be held on 17 June 2014: CB 70-75.  The applicant did not attend that interview: CB 91.

   8. On 19 June 2014, a delegate of the Minister (the delegate) refused the applicant's protection visa application: CB 88-96.  The delegate's decision record (along with a number of other enclosures) was sent to the applicant under cover of letter dated 19 June 2014: CB 76-87.

   9. The applicant sought review of that decision by the Tribunal on 23 July 2014: CB97-102.

   10. By letter dated 4 May 2015, the Tribunal wrote to the applicant to invite him to appear before the Tribunal to give evidence and present arguments in relation to the issues arising in his case: CB 111-117.  The applicant appeared before the Tribunal on 11 June 2015, assisted by an interpreter: CB 118. 

   11. At the hearing, the applicant raised (for the first time) a claim that his father had taken out a loan of about 1 million RMB at a high rate of interest from creditors that had connections with underworld (or criminal) figures: CB 132.  The applicant's father had borrowed the money because he was a gambler, but he had been unable to repay the loan and the creditors asked the applicant to repay it: CB 132.  The applicant's countryside house was damaged as a result, and he dared not return there, and he had been threatened in telephone calls on a number of occasions: CB 132-133.

   TRIBUNAL DECISION

   12. By decision dated 24 July 2015, the Tribunal affirmed the decision under review: CB 128-136. 

   13. The Tribunal did not accept the credibility of the applicant's claims and found that they were fabrications, for the following reasons:

   (a) First, the Tribunal identified a number of inconsistencies between his written statement lodged in support of his protection visa application and the oral evidence he gave at the Tribunal hearing (at [18]-[19]).  The Tribunal noted that, in his written statement, the applicant had given the impression that he had spoken to the family planning officials in person when they attended his home in Hanshou County for the first time, however at the Tribunal hearing he gave evidence that he was living and working in Wuhan City at the time and that he had spoken to the officials on the telephone.  Similarly, the Tribunal enquired whether he was present in Hanshou County during the second visit of the family planning officials, with the applicant stating that he had returned there the following week for a holiday, because his company was not very busy and that time and in order to help his daughter with her studies.  The Tribunal found the applicant's oral evidence about the visits from the family planning officials to be inconsistent with his written statement, with the most likely explanation being that 'the [a]pplicant had forgotten what had been claimed in his statement' (at [20]).  The Tribunal found that these inconsistencies cast 'strong doubt on the truth of his account of family planning officials attempting to take his wife to a pregnancy screening, a central element of his claims' (at [20]).

   (b) Secondly, the applicant gave evidence at the hearing that he began the process of applying for an Australian visa in June or July 2013 (his passport was issued in October 2013), however he had also given evidence that he did not know that his wife was pregnant with their second child until September 2013 (at [21]).  The Tribunal found that this evidence indicated that the applicant 'was preparing to leave China for Australia before he had any idea that his wife was pregnant once more', and also before the alleged abortion and before he was informed that he was required to have a vasectomy (at [21]).

   (c) Thirdly, the first time the applicant raised his claim about fearing harm from criminals as a result of his father's unpaid gambling debt was at the Tribunal hearing (at [22]).  The Tribunal found that the raising of this claim at the hearing 'gave every appearance of improvisation and development in response to further questions' (at [22]).  The Tribunal was 'not satisfied that the claim is at all credible and [it found] that the [a]pplicant's preparedness to advance it casts strong doubt over the credibility of his claims in general' (at [22]).

   14. The Tribunal consequently found that the applicant was not a witness of truth and did not accept that the applicant's claims to fear harm in China were credible (at [23]).  As the applicant did not claim to fear harm in China for any other reason, and no other reason was apparent on the face of the information before the Tribunal, the Tribunal found that the applicant did not engage Australia's protection obligations under either the refugee criterion or the complementary protection criterion (at [23]-[26]).”

4. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

5. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal unless this Court was satisfied that the Tribunal’s decision is affected by a mistake that goes to its jurisdiction. I explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake. I explained that the only issue before this Court was whether or not the decision of the Tribunal was made according to law.

6. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise. 

7. The applicant confirmed that he relied on the grounds identified in his originating application for judicial review, filed on 18 August 2015, stated the ground of review as follows:

   “1. We had a daughter, but in rural areas of China, that a family must have a son to maintain the family name and be breadwinner when the parents grow old. To the joy of our family, my wife was pregnant and decided to hide to escape the family planning. Unfortunately, she was founded by the family planning officials and forced for abortion on 10 Nov. 2013. I was very sad at this but the officials wouldn't excuse me from the requirement that I would undergo sterilization. Our family decided that we must not let the officials have their way. I heard, by chance, that the Australian government protects human rights and came to Australia to seek protection.

   But the Tribunal failed to consider my claims and the current situation in China. So the Tribunal said: “...I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to China, there would be a real risk that he would suffer significant harm in term of s. 35(209aa) of the Act.” { No.24 of Green Book}

   The Tribunal member failed to fully consider my claims and currently situation in China and refused my application, making jurisdictional error.” (Errors in original.)

8. The ground of review contained in the applicant’s application was interpreted for the applicant and the applicant was invited to make submissions in support of that ground.

9. The applicant said that he could not return to China and was at risk of harm because of his father, and he did not remember if the Tribunal had considered that complaint.

10. The applicant did not particularise that complaint any further. In the Tribunal’s summary of the applicant’s evidence, the Tribunal refers to the applicant’s claims to be at risk of harm because of unpaid debts by his father to criminals. In considering those claims, the Tribunal made the following finding:

    “22. Thirdly, the Applicant’s claim at the hearing that he feared harm from criminals as a result of unpaid gambling debts incurred by his father gave every appearance of improvisation and development in response to further questions about it. As put to him, he made no mention at all of this issue in his written statement, despite his alleged fear that he would suffer major physical harm by these unidentified people on return to China, and he offered no explanation for its sudden emergence at the hearing. I am not satisfied that he claim is at all credible and I find that that Applicant’s preparedness to advance it casts strong doubt over the credibility of his claims in general.”

11. The Tribunal found the applicant’s claims about his experiences in China to be unsubstantiated from any external source and that both his written claims and his oral evidence to the Tribunal were notably brief, vague and lacking in circumstantial detail. The Tribunal then identified with particularity inconsistencies that caused it concern and noted that it put those concerns to the applicant and noted the applicant’s responses.

12. Ultimately, the Tribunal comprehensively rejected all the applicant’s claims to fear harm in China. In particular, the Tribunal was not satisfied that the applicant’s wife was forced to abort a second child; that he came under pressure to have a vasectomy; that he was blacklisted by the government; or, that he was ever threatened by criminals or anyone else over debts owed by his father.

13. The Tribunal noted that the applicant did not fear harm in China for any other reason and that no other reason was apparent on the face of the information before the Tribunal.

14. The Tribunal concluded that the applicant did not meet the protection obligations under either s.36(2)(a) or ss.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”), and accordingly affirmed the decision under review.

15. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347,348 per Heerey J).

16. The applicant this morning did not elaborate any further on the complaint made in the ground of his application that the Tribunal member failed to fully consider his claims and the current situation in China in refusing his application.

17. The Tribunal’s decision record makes clear that the Tribunal identified the relevant law, accurately summarised the applicant’s written claims, and then summarised the applicant’s evidence at hearing. The Tribunal noted various exchanges that it had with the applicant, raising concerns it had with his evidence, and noted the applicant’s responses.

18. In the circumstances, the Tribunal’s findings would appear to be open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

19. The Tribunal applied the relevant law to the facts that it found in reaching its conclusion that the applicant did not meet either the refugee criterion in s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa) of the Act.

20. Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record.

21. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 18 August 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 16 December 2015