Bsu16 v Minister for Immigration

[2018] FCCA 3366

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSU16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3366

Catchwords:
MIGRATION –Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of a delegate of the Minister for Immigration and Border Protection not to grant the Applicant a protection visa – assertion that Administrative Appeals Tribunal relied on findings of an earlier Tribunal differently constituted and did not make its own examination of the applicants’ claims, that it failed to afford to the applicant procedural fairness and that it did not again consider the Refugees Convention criterion even though an earlier Refugee Review Tribunal decision had already considered his Refugees Convention claims – none of the grounds made out – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Evidence Act 1995 (Cth), s.43

Migration Act 1958 (Cth), ss.36, 48A

Migration Regulations 1994 (Cth)

Cases cited:

AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
AWA15 v Minister for Immigration [2018] FCA 604
SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

First Applicant: BSU16

Second Applicant: BSV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1785 of 2016

Judgment of: Judge Dowdy

Hearing date: 28 November 2017

Delivered at: Sydney

Delivered on: 26 November 2018

REPRESENTATION

The Applicants each appeared in person.

Counsel for the First Respondent: Mr T. Reilly of Counsel

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 12 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1785 of 2016

BSU16

First Applicant

BSV16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant in this proceeding is a male citizen of China aged 49 years, having been born on 26 November 1969.

2. The Second Applicant in this proceeding is a male citizen of China aged 28 years, having been born on 16 November 1990. He is the son of the First Applicant (collectively the Applicants).

3. By Application filed in this Court on 12 July 2016 they seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 3 February 2015 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).

Background

1. The Second Applicant applied for a Student (Class TU) (Subclass 580) visa (Student visa) offshore on 3 December 2007 and was granted it on 30 March 2008 when he was aged 17 years. He arrived in Australia with the First Applicant as his guardian on 23 April 2008. They both applied for Protection visas on 3 June 2008 (previous Protection visa application(s)). A Delegate of the Minister refused Protection visas to both Applicants on 15 October 2008, and on 12 February 2009 the Refugee Review Tribunal (RRT) affirmed the Delegate’s decision not to grant to them Protection visas (RRT decision).

2. Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ), which found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, on 13 May 2014 the Applicants again applied for the Protection visas (present Protection visa application(s)), which are the subject of this proceeding.

3. I note that the Second Applicant was included in the First Applicant’s Protection visa application as a dependant family member but made no protection claims in his own right. Accordingly, the success of his application for the Protection visa was dependent upon the success of the First Applicant.

Claims for Protection

1. In his present Protection visa application form the First Applicant sought protection in Australia on the basis of his claims made in response to questions 37 to 41, as follows:

   37Why did you leave that country?

   As a guardian of my son who came to Australia as a student and also to avoid any conflict with the authorities who have expropriated our land without fair compensation.

   38 Have you experienced harm in that country?

   Yes. I have been continuously threatened, harassed and intimidated.

   39 What do you fear may happen to you if you go back to that country?

   I am in fear of being unable to claim my rights of repossess my land or fair compensation; in fear of being harassed by the authorities. I also fear of the safety of our lives.

   40Who do you think may harm/mistreat you if you go back?

   The authorities.

   41 Why do you think this will happen to you if you go back?

   The authorities have demolished our house and expropriated our land for the government use without giving us a fair compensation. If I return to China, I will exercise my basic and fundamental right to seek fair compensation. If so doing, I will be persecuted by the authorities.

   42Do you think the authorities of that country can and wilt protect You if you go back?

   No. As the conflict is between the authorities and us, therefore the authorities will not afford a protection to us if I were removed to China.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The First Applicant attended an interview with the Delegate on 30 January 2015 and claimed that he feared returning to China because he would be persecuted by the Chinese authorities. The First Applicant claimed that he had petitioned the Government for compensation and then sued the developer of his expropriated land over what he perceived to be an unfair compensation offer. The First Applicant feared that the developer would beat him if he were to return to China.

2. In her Decision Record, the Delegate first summarised the First Applicant’s claims as made for the purposes of the present Protection visa application and as made by him for the previous Protection visa application.

3. The Delegate then recorded that there were a number of inconsistencies in the First Applicant’s account of factual matters and in the result found that:

   a)his property was not demolished;

   b)he did not try to petition the Government or sue the developer;

   c)he did not fear the developer or Chinese authorities, should he return to China;

   d)he is not of any genuine interest to the Chinese authorities; and

   e)he does not have a genuine fear of persecution if he were to return to China.

4. The Delegate found that she was not satisfied that the First Applicant would be subject to persecution if were he to return to China or that there were substantial grounds for believing that there was a real risk that he would be subject to significant harm if he were to return to China.

5. Accordingly, the Delegate refused to grant a Protection visa to the First Applicant as she was not satisfied that Australia had protection obligations to him under s.36(2)(a) of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) or the complementary protection criterion under s.36(2)(aa) of the Act. As she had refused a Protection visa to the First Applicant this also necessarily meant that she refused to grant a Protection visa to the Second Applicant.

6. I note that the Delegate only had jurisdiction to consider the present Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH).

Decision of Tribunal

1. The Applicants lodged an application for merits review of the Delegate’s decision on 23 February 2015 and gave to the Tribunal a copy of the notification of refusal letter and Decision Record of the Delegate. The First Applicant attended a Tribunal hearing on 7 June 2016 to give evidence and present arguments with the assistance of an interpreter in the English and Mandarin languages. The Second Applicant did not attend the Tribunal hearing.

2. I note that the Tribunal was of the view that its jurisdiction in considering the applications for the Protection visa was limited to the complementary protection criterion under s.36(2)(aa) of the Act and not the Refugee Convention criterion under s.36(2)(a). This view was subsequently confirmed as correct in SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113] – [114] per Mortimer J.

3. From [10] – [13] the Tribunal summarised the First Applicant’s claims as made for the previous Protection visa application.

4. At [19] of its Decision Record the Tribunal recorded the First Applicant’s current claims to protection under the present Protection visa application, and from [24] – [42] recorded its discussion of those claims with the First Applicant at the Tribunal hearing.  At [25] of its Decision Record the Tribunal recorded its concerns about the First Applicant’s claims, as follows:

   [25]The Tribunal had fundamental concerns about the veracity of the applicant’s claims. His application was extremely scant and his oral evidence was equally so. Further, the applicant contradicted himself throughout the hearing and also provided contradictory evidence to that which he provided at interview. This gave rise to concerns that the applicant fabricated his claims. Most significantly, on two occasions the applicant stated that he had been advised to provide information in a certain manner, indicating that some information and evidence he provided was not true. The Tribunal’s specific credibility concerns are outlined below.

5. Then from [26] – [42] the Tribunal considered the First Applicant’s claims with respect to six identified matters, being:

   a)Contradictory evidence about how the First Applicant obtained his Chinese passport.

   b)Contradictory evidence about how the First Applicant could not obtain his passport legally.

   c)Contradictory evidence from the First Applicant regarding his explanation as to why he had said he obtained a passport illegally.

   d)The First Applicant’s claimed lack of knowledge about who owned his claimed ancestral home, in which his wife and youngest son still lived in China.

   e)Demolition and when and what had been built on the demolished site.

   f)Contradictions between evidence given at the interview with the Delegate that demolition of his property had occurred for the construction of a road and evidence given at the Tribunal hearing when the First Applicant said that he did not know the purpose of the demolition, and had not asked about the purpose.

6. In the result, the Tribunal concluded at [40] and [42] of its Decision Record as follows:

   [40]The Tribunal was not satisfied that the applicant’s house was demolished. Despite attempts to draw from him a reasonable fulsome account, the applicant provided very little detail. While this itself does not mean the information he provided on the demolition of his house was not credible, the fact that most of his other evidence was so implausible and contradictory that the Tribunal could not be satisfied with the very limited account of what the applicant gave regarding the circumstances of the demolition and acquisition of his house and property.

   …

   [42]As outlined above, the Tribunal had significant concerns about the applicant’s credibility. These concerns were such that the Tribunal rejected the applicant’s claims that his house was demolished, that he protested and petitioned the government about this, that he was beaten, detained and fined by police, that he was deported back to the village, and that he was continuously threatened, harassed and intimidated.

7. In the result the Tribunal was not satisfied that Australia owed protection obligations to the First Applicant under the complementary protection criterion and refused to grant a Protection visa to him, and that meant that a Protection visa was not granted to the Second Applicant and the decision of the Delegate not to grant to them Protection visas was affirmed.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicants relied upon the following Grounds:

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

   2. The Tribunal failed to afford procedural fairness.

   3. The Tribunal failed to apply the Refugee Convention Criterion to our claims.

Consideration

1. At the final hearing, neither of the Applicants made any meaningful submissions in support of their Grounds. I note that at the first directions hearing on 5 August 2016 I had drawn to the attention of the First Applicant that his second Ground was “very general and vague” and that he ought to very carefully consider filing an Amended Application and a transcript of the Tribunal hearing, but that has not occurred. Further, the Applicants have not served any Outline of Submissions in support of their Grounds.

Ground 1

1. This Ground fails to establish jurisdictional error.

2. It appears to assert that the decision of the Tribunal under review merely followed, and was dictated by, the RRT decision which had considered the previous Protection visa application and did not bring its own independent consideration to bear upon the review application before it. The same assertion seems to be made with respect to the decision of the Delegate of 3 February 2015 under review by the Tribunal.

3. However, this assertion is not made good. In the circumstances of this case there was nothing illegitimate in the Tribunal recording from [10] – [15] the nature of the claims to protection made by the First Applicant for the previous Protection visa application and the result of the RRT’s decision on that previous Protection visa application. Nor was there anything illegitimate in the Tribunal at [20] of its Decision Record summarising the reasons of the Delegate as given in the Decision Record of the Delegate under review by the Tribunal.

4. Rather, the Tribunal in the earlier parts of its Decision Record was setting out the previous historic circumstances which led to its conclusion at [18] that it ought only consider the Applicants’ present Protection visa application under the complementary protection criterion.

5. Further, the adverse findings of the Tribunal as to the First Applicant’s credibility were substantially based on contradictions and inconsistencies arising out of his own evidence at the Tribunal hearing, rather than inconsistencies between the claims as made by him prior to the Tribunal hearing and at the Tribunal hearing. Even if the Tribunal had proceeded in that way and contrasted earlier and later claimed assertions made by the First Applicant as evidencing inconsistencies, that would not have been an illegitimate mode of proceeding. This is because it is common for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If that party has earlier said one thing and then subsequently says another thing about the same subject matter this may, if not minor or trivial, throw suspicion on the accuracy or credibility of that party’s evidence. Likewise, if that party makes a claim later which he had not made earlier but which might have been expected to have been made at that earlier point of time. In this context Nettle J said in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at 10 as follows:

   …. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ.)

   No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.

6. In AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205, the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:

   [24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).

1. Finally, an examination of the Decision Record of the Tribunal clearly evidences that it did bring an independent mind to its consideration of the review application lodged by the Applicant, and this Ground is not made out.

Ground 2

1. This Ground is entirely generalised and unparticularised and no submission either orally or in writing has been made by either of the Applicants in support of it.

2. The Applicants have not tendered a transcript of the Tribunal hearing although order 3 of the consent orders of this Court of 5 August 2016 placed the responsibility for doing so upon them.

3. The Decision Record of the Tribunal indicates that the Tribunal carried out its inquisitorial function in a conventional way and [30] of the Decision Record of the Tribunal records that the Tribunal offered the First Applicant an adjournment because of his claims of being nervous, but that this opportunity for an adjournment was declined by him.

4. Ground 2 is not made out.

Ground 3

1. In my view, the Tribunal was clearly correct in taking the view expressed at [18] of its Decision Record that it was confined to considering the Applicants’ claims under the complementary protection criterion. The Tribunal there correctly referred to the decision of Markovic J in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 to that effect and the reasoning and conclusion of Markovic J in that case were subsequently approved as correct in SZVCH at 379 [41].

2. Ground 3 is not made out.

Conclusion

1. The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and their Application to this Court is to be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 November 2018