BSN15 v Minister for Immigration

[2017] FCCA 3093

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSN15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3093

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for protection visas – there was no breach of the requirements of procedural fairness or s 425 of the Migration Act 1958 (Cth) in the conduct of the hearing – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

First Applicant: BSN15

Second Applicant BSO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2344 of 2015

Judgment of: Judge Street

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Sydney

Delivered on: 8 December 2017

REPRESENTATION

Counsel for the Applicants:

Mr H P T Bevan

On a direct access basis

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. Grant leave to the applicants to file in Court the amended application dated 8 December 2017 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicants pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2344 of 2015

BSN15

First Applicant

BSO15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 July 2015 affirming a decision of the delegate not to grant the applicants protection visas.

2. The applicants are husband and wife. The second applicant was included as a member of the family unit of the first applicant. The applicants were found to be citizens of China and their claims were assessed against that country. The applicants travelled to Australia together on 21 October 2013 in possession of an (FA-600) Tourist visa valid for three months expiring on 21 January 2014. It was on 21 January 2014 that the applicants lodged their protection visas.

3. The first applicant claimed he was a businessman involved in a business in China and that his brother-in-law was a businessman who was involved in protests that led to him being detained and re-educated. The first applicant claimed that he had dealt with some matters relating to his brother-in-law’s business while his brother-in-law was in trouble and that after his brother-in-law left China, the first applicant was implicated in a case and investigated by the Public Security Bureau to see if he had been involved in anti-government activity.

4. The first applicant alleged a particular person Y came to see him and wanted to join his business and that he would ensure no further trouble for the first applicant’s business because of his family connections in the Public Security Bureau. The first applicant claimed that the particular person Y caused a lot of trouble in the business and embezzled money. The first applicant claimed that he was arrested on 6 March 2013 by the Public Security Bureau on the allegation that he had borrowed 2 million RMB from the bank. The first applicant stated that he realised Mr Y had borrowed the money. The first applicant claimed to have been detained for two and a half months during which time the first applicant was forced to accept the allegations and sign documents. The first applicant claimed that he was treated badly and that when he was his business was closed. The first applicant claimed that he eventually learnt Mr Y had operated an underground casino and he went to the local police to complain about Mr Y and the police said they would investigate. The first applicant stated that he was subsequently warned by a friend that he had heard that Public Security Bureau officials and police were investigating the first applicant and that it was recommended the first applicant leave China.

The delegate’s decision

1. The delegate made adverse credibility findings in relation to the first applicant’s claims and was not satisfied that they were credible. The delegate identified putting to the first applicant considerable concerns and doubts about both the plausibility of the first applicant’s statements, in part due to lack of any evidence supplied by him in support of them. The delegate said that the concerns were not alleviated by the first applicant’s submission of two photocopies of documents after the interview. The delegate referred to the first applicant submitting photocopies of two documents, a business registration and an arrest notification after the interview. The delegate identified, having considered the authenticity of the documents and was disinclined to accept them as genuine for reasons provided by the delegate. The delegate identified in that regard both the prevalence of the widespread nature of document fraud in China and the applicant’s testimony at the interview being inconsistent and contradictory of these documents. It was in those circumstances that the delegate gave those documents little weight.

2. The delegate noted that the first applicant denied having an intention of seeking protection in Australia when he left China and the delegate made reference to the first applicant saying he wanted photographs of his factory for sentimental not evidentiary reasons. The delegate raised with the first applicant why his friend took the considerable risk of trespass to break into the factory, locate the photographs and post them to the applicant, did not also get the business registration and arrest notification document. It was identified that these were the total evidence the first applicant had available to him. The first applicant indicated that he did have other documents in relation to a title deed of the factory and contract between himself and another person and said that all his documents were destroyed when the factory was demolished.

3. The delegate identified that he accepted that the first applicant may have run some sort of business in China and that it may have been a shoe manufacturing business. The delegate did not however, accept the business was on the scale the first applicant described or that any of the problems the first applicant claims to have experienced actually occurred. The delegate found the claims were inconsistent and implausible. The delegate rejected the first applicant’s explanation for the absence of evidence and found the applicant had sufficient time to assemble documents in support of his need for protection if they in fact existed.

4. The delegate found it reasonable to expect that the first applicant’s claims had they been genuine, would have been able to be substantiated in relation to key ones, such as owning a business and being in partnership, with documentary evidence that would lend credence to his account overall. It was in these circumstances that the delegate said that the first applicant’s failure to provide credible documentary evidence combined with numerous implausibilities in his claims led the delegate to conclude that the applicant’s claims are fabricated and not genuine.

The Tribunal’s decision  

1. The applicants applied for review to the Tribunal and were invited to appear before the Tribunal on 8 July 2015 to give evidence and present arguments. The transcript has been tendered, and on a fair reading of the transcript, it is apparent that the Tribunal raised with the first applicant serious concerns in respect of the first applicant’s credit in relation to documents purporting to support his alleged business and company. That the first applicant’s story was fabricated was also squarely raised by the Tribunal in the course of the hearing, suggesting to the first applicant that he was making up a story.

2. The Tribunal in its reasons identified the background to the application for review. The Tribunal correctly set out the relevant law. The Tribunal summarised the migration history of the applicants and summarised the first applicant’s claims and evidence in relation to being a businessman in China, in relation to the factory, being implicated in a case, investigated by the Public Security Bureau, the alleged joining the business of Y and the trouble caused by Y and his alleged arrest by the PSB. The Tribunal noted that the first applicant claimed that it was fortunate he was not at home when the police came to arrest him, as he and his wife had left China.  

3. The Tribunal summarised what occurred at the interview with the delegate and referred to the document provided, being the business licence as well as the document in relation to his having been arrested. The Tribunal referred to the first applicant explaining they had not arrived at the time of the interview and that he now produced them and that he could not provide anything further, as his friend had said that the local government had demolished the factory building and hence all materials including financial reports or commercial documents, in relation to his factory had been destroyed.

4. The Tribunal summarised what occurred at the hearing and referred to the two documents that the first applicant provided in support of the business and the applicant’s claim that the factory had been demolished in relation to the absence of other documents. The Tribunal expressly referred to raising with the first applicant in the course of the hearing the limited documents that were provided and correctly raised with the first applicant the implausibility of the same which the transcript supports.

5. The Tribunal identified with the first applicant why the factory would be pulled down and why the first applicant did not know about the Court documents naming him and the factory. The Tribunal referred to asking the first applicant to explain the scale of the business and why it was he was only able to produce two documents. The Tribunal referred to the second applicant’s evidence in relation to the factory closing and alleging that her husband had been very seriously harmed and arrested on 6 March 2013. The Tribunal noted, raising with the first applicant and the second applicant, that it seemed extraordinary that only two documents are produced in support of his having had a factory that was closed down and in respect of his claims. The Tribunal identified having serious concerns in relation to credibility of the applicants, particularly the first applicant and his witness, the second applicant. The Tribunal found the evidence of the first applicant was not reasonable to believe the same is true. The Tribunal did not accept as reasonable to believe that if property was seized by the bank, the first applicant would have no documents in relation to this and no knowledge of the outcome of the auction of court proceedings.

6. The Tribunal observed that, as the first applicant has no such information or documents or knowledge, this indicated that these events did not occur and that this had been fabricated by the first applicant. The Tribunal did not accept as reasonable to believe that all of the various types of business records and documents that a business and its owner may have, such as tax records, accounting documents, invoices, accounts, ledgers, annual reports, business registration, title deeds to name a few, that only two documents could possibly be provided by the first applicant in support of his claim.

7. The Tribunal considered that no other documents had been provided because they do not exist and that the first applicant did not have a business as claimed. The Tribunal did not accept as reasonable to believe that if the first applicant was wanted by the authorities that he would then have been able to depart from China without difficulty. The Tribunal found that the first applicant was able to do so indicated he is not wanted by them.

8. The Tribunal proceeded to make adverse credibility findings and provided reasons in support of the same. The Tribunal found the first applicant’s claimed story is not reasonable to believe that it is true. The Tribunal found it was vague and inconsistent and not supported by anything other than two documents and some photos. The Tribunal did not accept either document as genuine and found that they had been fabricated so as to support the first applicant’s story. The Tribunal found the first applicant is not a credible witness and did not accept any of his claims as true.

9. The Tribunal found the brother-in-law’s evidence to be unreliable and insofar as the brother-in-law supported the first applicant’s claim, found that the brother-in-law was not a credible witness. The Tribunal found the applicant’s wife’s evidence to be unsupportive of any claims. The Tribunal did not accept any of the claims relating to the first applicant or his business as being of adverse interest to the PSB or authorities or anyone else in China. The Tribunal did not accept that there was any involvement of a bank or a man named Y.

10. The Tribunal found the applicants’ fear of harm was not well-founded. The Tribunal was not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found that the applicants did not meet the criteria under s 36(2)(a) of the Act. The Tribunal did not accept the first applicant is a credible witness and did not accept his claims relating to be of adverse interest to anyone. The Tribunal noted that the wife had no claims of her own. The Tribunal was not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act, and affirmed the decision under review.

Before this Court

1. The grounds of the amended application are as follows:

   1. The second respondent erred by denying the applicants procedural fairness, contrary to s 425 of the Migration Act 1958, in that the Tribunal did not give the applicants a sufficient opportunity to give evidence, or present arguments, about the issue of whether the applicant had a business at all in China.

   Particulars

   (i) The delegate accepted that the applicant may have run some sort of business in China and it may have been a shoe manufacturing business. This finding was also supported by evidence in the form of photographs.

   (ii) At the hearing before the second respondent, these matters were not squarely addressed by the Tribunal.

   (iii) Despite this, the Tribunal found that the applicant did not have a business as claimed. This finding entailed a rejection of the delegate's earlier finding.

   (iv) This issue was not identified to the applicants. Failure to do so constitutes jurisdictional error.

   2. The second respondent erred by failing to give proper, genuine and realistic consideration to the evidence that supported the claim which had earlier been accepted by the delegate, comprising the photographs and the wife's oral evidence in circumstances where no explicit reasons are given for rejecting or otherwise doubting that supporting evidence. Particulars

   (i) The delegate accepted that the applicant may have run some sort of business in China and it may have been a shoe manufacturing business. This finding was also supported by evidence in the form of photographs.

   (ii) There second applicant gave evidence to the second respondent that she had visited the factory, which she described.

   (iii) The second respondent did not make any finding rejecting the authenticity of the photographs. The second respondent did not make any adverse credibility finding against the second applicant insofar as relates to this evidence.

   (iv) The second respondent did not properly consider the evidence of the photographs and the second applicant. Failure to do so constitutes jurisdictional error.

Reasoning

Ground 1

1. Mr Bevan of counsel on behalf of the applicants, endeavoured to argue that the Tribunal made adverse findings in relation to the first applicant not having a business in circumstances where the issue had not been a live issue before the delegate on a close reading of the delegate’s decision, and submitted that the issue had not been squarely raised in the course of the hearing.

2. The delegate’s reasons, just like the Tribunal’s reasons, are not to be read with a keen eye for error. On the face of the delegate’s reasons, the credibility of the applicant’s claims were squarely raised and rejected by the delegate in respect of the applicant’s assertions in respect of his business. I do not accept that it was confined to the scale of the business. Equally, the transcript of the Tribunal’s hearing does support the credibility of the applicants being raised in respect of the alleged business activities of the first applicant in the course of the transcript.

3. There was no breach of the requirements of procedural fairness or any breach of s 425 of the Act in the context of a hearing. The applicants had a real and meaningful hearing before the Tribunal and had a real opportunity to develop their claims and evidence. Notwithstanding the skilful, succinct and well-honed submissions of Mr Bevan, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Bevan of counsel acknowledged that ground 2 could not succeed if ground 1 failed. Further, it is apparent on the evidence before the Court that the Tribunal did take into account the photographs referred to as well as the wife’s evidence. The proposition that there was no proper, genuine and realistic consideration given to the applicants’ claims is not made out. Ground 2 fails to make out any jurisdictional error.

2. Accordingly, the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 February 2018