BSX16 v Minister for Immigration
[2018] FCCA 821
•10 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 821 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal– decision on complementary protection grounds – earlier decision of Refugee Review Tribunal concerning refugee criterion grounds – failure to consider refugee criterion grounds – whether Administrative Appeals Tribunal made own findings – whether reliance on Refugee Review Tribunal findings – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.36, 48A, 415, 474, 476 Migration Amendment (Complementary Protection) Act 2011 (Cth), item.12 |
| Cases cited: AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424 Brar v Minister for Immigration & Border Protection & Anor (No.2) [2017] FCCA 1538; (2017) 322 FLR 81 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 NAOA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 |
| Applicant: | BSX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 306 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 March 2018 |
| Date of Last Submission: | 19 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 10 April 2018 |
REPRESENTATION
| Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Ms B Rayment |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 306 of 2016
| BSX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 12 July 2016 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The AAT Decision dated 24 June 2016 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The AAT Decision appears in the Court Book (“CB”) at CB 179-192.
The applicant initially applied for, and was denied, a Protection Visa in 2008. As a result of the decision in SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71 (“SZGIZ”) the applicant was permitted to apply for a Protection Visa to be considered under the subsequently enacted “complementary protection” provisions, being ss.36(2)(aa), 36(2A), 36(2B) and 36(2C) of the Migration Act, introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) and taking effect from 24 March 2012.
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of China who first arrived in Australia on a valid Tourist (Class TR)(Subclass 676) visa on 8 November 2007: CB 4 and CB 32;
b)on 10 December 2007 the applicant lodged a Protection Visa application (“First Visa Application”) making claims that:
i)the applicant is a Fujian Catholic and has attended church since he was 3 years old but he is an unregistered “Rome Catholics”: CB 27;
ii)since 2001 the Chinese government forced him to join the China National Patriotic Committee (“CNPC”) controlled by the Chinese communist party, and to abandon his Catholic beliefs as the Catholic religious activities he engaged in would be viewed as “illegal” in China, but he refused to join as he “cannot betray… and stain our holly worship” and as he did not join the CNPC the police and local communist cadres threatened, extorted, harassed, and imprisoned him: CB 27;
iii)local police had been to his home several times and tried to persuade him to register in the CNPC, but he “just prevaricated to them” and thought as he was just an ordinary Catholic, had low education background and the things he could do for church were very limited they might not pay much attention to him: CB 27;
iv)during the school holiday period in January 2007, 10 children were in a Bible class and around 10 policemen suddenly broke into church, where the applicant was present as he was in charge of transit of several children, and arrested the applicant, two others and all the children: CB 27;
v)the children were released after their parents promised these children would not take part in Bible class again, while the applicant and two others were detained for two days and released on the condition that they not organise religious activities again and pay a fine of RMB3000 Yuan: CB 27;
vi)on the night of 13 April 2007, about 7.00pm, while the applicant and about 10 other people were patrolling around the Church about 20 policemen arrived claiming to close the Church and a conflict arose when attempting to stop the police in which a policemen hurt the applicant’s leg and broke two of his teeth: CB 27;
vii)the applicant and another two people were brought to a detention centre, locked in a room, refused food, and not permitted to see a doctor, and while there were requested to provide the details of activities organised by two others and a list of those participating in the activities, and said they would release the applicant if he gave up the “underground religious activities” and took part in the activities of CNPC: CB 27;
viii)a policeman threatened the applicant and told him (at CB 28):
We have put you on our record for the last time involvement of the Bible studying class. Now you are fighting with police for safe guarding the Church. You can be detained in the name of attacking police and disturbing social security if you are not behaving well this time.
ix)when the applicant’s wife came to visit him on the eighth day of his detention and told him that the police had seen her and told her that his two children could be expelled from school, and as the applicant has little education he did not want his children facing the same situation as he had, and so the day after he signed a compromise letter and his wife paid a fine of RMB3000 Yuan and he was released: CB 28; and
x)the police restrict him from participating in any kind of religious activities, and he was asked to report to the police any time he went out of the Fuqing city and must be contactable by police at any time, and having stayed at home for one month he felt depressed, heightened by his being prohibited from participating in church activity, and he came to Australia: CB 28; and
xi)after he left China his wife told him she has been threatened by policemen several times, and they had requested her to tell him not to disclose the Catholic Church situation in Fujian “overseas”: CB 28;
c)on 14 January 2008 a delegate of the Minister refused to grant the applicant a Protection Visa and following an application for review, the then Refugee Review Tribunal (“RRT”) affirmed that delegate’s decision regarding the First Visa Application on 29 April 2008 (“RRT Decision”): CB 32-59;
d)the applicant remained in Australia thereafter until, on 31 December 2013, he lodged a further application (“Second Visa Application”) for the Protection Visa making the following claims:
i)he left China to avoid persecution by authorities and harm by villagers: CB 77;
ii)the villagers are opposed to his Catholic practise and colluded with the authorities after he came to Australia to use his land for a public road without any compensation: CB 78-79;
iii)if he continues to practice his faith and claim his legal right to the land being expropriated by the villagers with the authorities' acquiescence, he will incur harm and mistreatment by the villagers who will take revenge against him by way of hindering his Catholic practise and colluding with the authorities to continue persecuting him: CB 77-79; and
iv)he has been physically tortured and mentally intimidated by villagers and the authorities have turned a blind eye to their encroachment on his land, so he fears to return to China as he will be denied the right to worship his “catholic belief”, and will be denied his legal right to his property taken by the villagers, and he will be tortured and mistreated: CB 78;
e)on 19 February 2015, the Delegate’s Decision was to refuse to grant the Protection Visa: CB 134-152; and
f)on 7 March 2015 the applicant lodged an application for review of the Delegate’s Decision with the AAT: CB 153-154;
g)the applicant was invited to attend, and attended, a hearing before the AAT (“AAT Hearing”) on 20 April 2016 with the assistance of an interpreter and his migration agent: CB 160-163 and CB 167; and
h)on 24 June 2016, the AAT Decision affirmed the Delegate’s Decision: CB 174-192.
AAT Decision
In the AAT Decision the AAT:
a)acknowledged the applicant had made the First Visa Application, and been denied a Protection Visa in 2008: CB 175 at [2];
b)confirmed the Delegate’s Decision dated 19 February 2015 was the subject of the review before the AAT: CB 175 at [2];
c)provided background on the applicant’s First Visa Application including the claims made, the findings of the delegate, and the findings in the RRT Decision, particularly noting:
i)the substance of the claims made in the First Visa Application: CB 175 at [3];
ii)that the delegate found the applicant’s claims lacked credibility, and that the delay in the applicant seeking a protection visa was inconsistent with a genuine and significant fear of persecution: CB 175 at [4]; and
iii)the RRT rejected many of the applicant’s claims, including that he was a practising Catholic, and that the RRT found the applicant’s church attendance in Australia was engaged in for the purpose of enhancing his claims for the purpose of staying in Australia, and that considered cumulatively the applicant’s evidence lacked credibility and suggested fabrication: CB 175 at [4];
d)summarised the claims made by the applicant in the Second Visa Application, and made the following comments at the AAT Hearing:
i)that the AAT had explained to the applicant that it could only consider his claims in accordance with s.36(2)(aa) of the Migration Act, and that the applicant indicated he understood this to be the case, and the AAT further explained the definition of “significant harm” as set out in s.36(2A) of the Migration Act: CB 176 at [10];
ii)the applicant said that his father had passed away, and said he was too scared to go home to see his father, before stating that his father-in-law passed away a few days before the AAT Hearing, and that his wife can provide evidence of that, but that his own father is in bed and cannot move and will pass away at any time, but that when he could still talk he told the applicant not to go back to China because of the problems with the block of land which he owns there: CB 176 at [12]-[13];
iii)the applicant said that if he goes back he will try to get the land back, and will even sacrifice his life attempting to do so, or that someone will die because it is his land and he paid for it. When asked if he had taken legal action in China he stated his family has tried to negotiate and they can only get the land back by fighting so either he will die or "they" will die: CB 176 at [13]-[14];
iv)when the applicant lodged his First Visa Application, his ground was religion and he was not believed, and the land dispute was not then an issue, but it was in 2013 when his family told him the block was "totally a mess" as they bought the block to build, but his neighbours said they wanted to put a road through the middle of the block and because of this he now cannot build, though if the local government was to build the road then that would be okay, but in their particular case the neighbouring landowners have land behind his block and they wanted to build a road through his land: CB 177 at [15];
v)upon the applicant admitting he had been working as a tiler, seemingly without work rights, the AAT put it to the applicant that it might conclude that he is not credible if it formed the view that he was willing to ignore Australian migration law by working without permission to do so, to which the applicant responded that he works for many employers and how can he live if he does not work: CB 177 at [17]-[18];
vi)asked the applicant how it was that he remained an unlawful non-citizen for almost 6 years, to which the applicant said that he applied to the Federal Court for a review of the RRT Decision and he had had no answer to that appeal to the Federal Court, to which the AAT put it to the applicant it would be most unlikely that the Federal Court would not have made a decision by now if he had lodged an application for judicial review in 2008, and that there was no record of an appeal to the Federal Court ever being lodged in relation to the RRT Decision, but the applicant maintained that his lawyer told him that he had posted an application for review, and his lawyer has a receipt to prove it, though he could not recall the lawyer’s name, or rather never asked his name, but was living in the lawyer’s house in Auburn in New South Wales: CB 177 at [19];
vii)the applicant said he still fears harm because of his religion and he will not survive if he returns to China, and when asked what trouble he experienced he said he provided information in the earlier applications, and he now cannot remember, and when asked who would still want to harm him after all this time he suggested if he was to return he would seek revenge: CB 178 at [20]-[22];
viii)the applicant said he rarely goes to church in Perth as:
A. he believes “religion is in your heart, not in church”, and while he understood that there was some expectation of church attendance in the Catholic religion he said that it is different in China where the church in his case, is next door: CB 178-179 at [26]; and
B.in Australia because his English is not good, and there are not many Catholic churches around Perth, or he cannot find them: CB 178-179 at [26];
ix)the applicant however uses a GPS to locate worksites, and when asked why he could not do the same to locate Catholic churches, said he did not know how to spell “Catholic church” in English. When the AAT put it to the applicant that worksite addresses would be in English and he appeared to have no difficulty navigating his way to worksites, the applicant responded that he had provided details in his earlier applications: CB 178-179 at [26];
x)the Tribunal explored with the applicant the level of his involvement in the church in China and in Perth, and put to the applicant that the evidence may lead the Tribunal to conclude that he would not practise Catholicism, or attend a church in China, and that there would not be a real risk of significant harm because of that non-practise or non-attendance: CB 179 at [28];
xi)the Tribunal also explored with the applicant the nature of the work that he performed, and for whom he performed it, and how often he worked: CB 179-180 at [32], and the capacity of the applicant to work in the absence of his having work rights: CB 180 at [34];
xii)following a brief adjournment the AAT put to the applicant a number of inconsistencies in his claims, concerns as to credibility arising from his working without visa work rights for at least two years, and also whilst he was an unlawful non-citizen for six years, referred to country information which it considered might be adverse to the applicant's claim and put this to the applicant for comment, who responded he could not comment as he was unaware of what the situation was “now”: CB 181 at [33]; and
xiii)when asked by the Tribunal if he wanted to comment on anything contained in the Delegate’s Decision or in the RRT Decision the applicant said that his Priest had given evidence to the RRT and that he had nothing more to say if the government insists that it does not believe his case: CB 180 at [36];
e)the Tribunal dealt with issues that it needed to put to the applicant in relation to relocation, the land dispute, country information concerning religious policies and the land dispute, including laws passed in 2009 intended to assist in the mediation and arbitration of land disputes: CB 180-181 at [38]-[42];
f)asked the applicant whether he thought his representative wanted time to make submissions in support of his claims, but the applicant said that there was no need for that and that he had said everything: CB 181 at [43];
g)referred to relevant legal principles regarding:
i)the complementary protection provisions in s.36(2)(aa) of the Migration Act: CB 187 at [46]-[48];
ii)the policy guidelines prepared by the Minister to be taken into account when making a decision: CB 182-183 at [49]; and
iii)assessment of the credibility of an applicant: CB 183-184 at [50]-[55];
h)carefully considered the applicant's written statements and the oral evidence provided by the applicant at the AAT Hearing, and having done so formed the view that the applicant was not a witness of truth and that he had fabricated his claims for the purpose of obtaining a permanent visa to remain in Australia, and found that the applicant was not a reliable or credible witness but rather a person who does not face a real risk of significant harm, but who nonetheless seeks to use the protection visa regime as a vehicle to secure a permanent visa: CB 184 at [56];
i)set out relevant country information to which the Tribunal had had regard: CB 184 at [57] and Appendix A at CB 188-192 at [74]-[77];
j)formed the impression that the applicant had rehearsed his evidence and adopted a conscious approach to simply repeat his two core claims as to religion and the property dispute, irrespective of the truth of them, and irrespective of the absence of credible evidence to support the claims: CB 185 at [62];
k)found that, even if the AAT was to give the applicant the benefit of the doubt and find he was likely to practice the Catholic faith if he returns to China, the relevant country information indicates there is not a real risk that he would be targeted for significant harm, particularly in light of his profile and lack of political activism: CB 185 at [62] (although the AAT Decision says “there is not a real risk that he would not be targeted for significant harm” it is plain that the second “not” is a typographical error);
l)to the extent that the applicant claims to have scars from the incident with a policeman, the AAT rejected that these were sustained as he claims: CB 185 at [63];
m)observed that the applicant said at the AAT Hearing that “if I go home now the government wouldn't harm me. I can guarantee 100% ...”, leading the AAT to find there is not a real risk that the applicant will suffer significant harm for reasons of his claimed religious beliefs if he returns to China: CB 186 at [64]-[66], and see also CB 180 at [35];
n)accepts there is reliable country information as to the existence of property disputes in China, and that there are legislative and judicial avenues open to deal with land disputes, albeit a less than perfect system which is affected by corruption in its administration, but nevertheless found the applicant's evidence that he faces significant harm because he purchased land and that his neighbours have used, or intend to use, part of the land for their own use as a road to access other land, was not credible, and was not satisfied that there has been a land dispute at all, therefore it rejected his claim that he would face physical conflict with his neighbours attempting to reclaim the alleged dispossessed land: CB 186-187 at [67]-[68];
o)following on from the above findings, held that the question of state protection does not arise as there is not a real risk that the applicant will be targeted for harm for reasons of the claimed land dispute, or for reasons of religion, and nor was it necessary for the AAT to make findings in respect to internal relocation in circumstances where there was not a real risk of significant harm: CB 187 at [70];
p)was not satisfied that the applicant is a person in respect of whom Australia has complementary protection obligations under s.36(2)(aa) of the Migration Act: CB 187 at [71]; and
q)affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 187 at [73].
Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. The Tribunal failed to apply the Refugee Convention Criterion to my claims.
2. The Tribunal failed to make its own findings, namely, the Tribunal has been relying the previous different constituted Tribunal findings.
On 3 August 2016, a Registrar of this Court made orders (“Registrar’s Orders”) allowing the applicant to file:
a)any amended application;
b)any further supporting affidavits; and
c)a written outline of submissions.
Prior to the hearing on 19 March 2018 the applicant had not availed himself of the opportunity provided in the Registrar’s Orders to file further materials.
Having explained to the applicant in some detail what he was required to do in these proceedings, and specifically that he had to tell the Court how it was that he said the AAT committed a jurisdictional error, and that a jurisdictional error was a significant legal error by the AAT such as identifying a wrong issue, asking a wrong question, taking into account an irrelevant consideration, failing to take into account a relevant consideration, or being denied procedural fairness, the applicant said that he had already provided all of the detail in his earlier applications and had nothing more to provide. The applicant had adopted a similar position of having nothing more to provide at various stages during the AAT Hearing: see [4(d)(ix) and (xiii) and (f)] above.
Minister’s submissions
The Minister made the following submissions in seeking the application be dismissed with costs:
a)the AAT did not, and was not required to, consider the applicant’s claims under the Refugee Convention as the RRT had already done so, and therefore the Delegate and the AAT were only permitted to consider the applicant’s claims in respect of the complementary protection criterion in s.36(2)(aa) of the Migration Act: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 266 at [37] per Kenny, Siopis and Besanko JJ (Dowsett and Mortimer JJ both agreeing); AMA15 v Minister for Immigration & Border Protection [2015] FCA 1424 (“AMA15”);
b)even in circumstances where the Delegate considered the applicant’s claims against both the Convention and complementary protection criteria, the correct approach, as adopted by the AAT, was to assess the applicant’s claims only against the complementary protection criterion, and therefore no jurisdictional error arises in ground 1;
c)the AAT did not rely upon the findings in the RRT Decision, rather it noted the background to the matter which relevantly included the applicant's claims made in both the First and Second Visa Applications, as well as the various findings made by the Delegate and the RRT, and gave a detailed account of the AAT Hearing during which it put information to the applicant, including information that the Delegate and the RRT did not believe his claims: CB 175-176 at [3]-[7] and CB 176-182 at [9]-[44];
d)the AAT ultimately reached its own findings in relation to the credibility of the applicant's claims placing particular reliance on the applicant's variously inconsistent evidence as well as its concerns with the oral evidence given at the AAT Hearing: CB 184 at [56];
e)the AAT was not bound to reach the same or a different conclusion to the RRT: it had complete liberty to make its own findings: Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518; (2003) 77 ALJR 786; (2003) 196 ALR 385 (“Wang”) at 522, 525-526 and 533 per Gleeson CJ and McHugh J, and the fact that a differently constituted second tribunal does reach the same conclusion does not mean it simply adopted the reasons of the first tribunal; and
f)on a fair reading of both the RRT Decision and the AAT Decision this is not a case where it could be said that the AAT did nothing more than refer to previous findings in making the AAT Decision or did not undertake an independent evaluation of the evidence available.
Consideration
Requirement for jurisdictional error
A decision by the AAT may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error will only constitute a jurisdictional error where the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
The complementary protection regime
Section 36(2)(aa) of the Migration Act was enacted to express Australia’s engagement with non-refoulement obligations under various international treaties to which Australia is a signatory. Section 36(2)(aa) of the Migration Act provides that it is a criterion for a protection visa that the applicant for the visa is:
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; …
The Full Court of the Federal Court has explained how the enactment of s.36(2)(aa) of the Migration Act is to be incorporated into a refugee assessment, and expressed the main principles to be considered when making such an assessment in Minister for Immigration & Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [18]-[20] per Lander, Jessup and Gordon JJ as follows:
18. The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia's express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment.” Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Section 36(2B)(a) and (b) have adopted a different and contrary position. Section 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.
19. Further, the test adopted in s 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.
20. It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely s 36(2)(aa) and 36(2B), construed in the way that has been indicated.
The Explanatory Memorandum to the Migration Amendment (Complementary Protection) Act 2011 (Cth) item 12 at [67] states the “test” as to whether an applicant satisfies the criterion in s.36(2)(aa) of the Migration Act can be explained as follows:
…Australia’s non-refoulement obligations under the Covenant and the CAT require that a non-citizen not be removed to a country where there is a real risk they will suffer significant harm. A real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal. The risk must be assessed on grounds that go beyond mere theory or suspicion but does not have to meet the test of being highly probable. The danger of harm must be personal and present.
The Full Court of the Federal Court confirmed the test to be applied when finding that the “real risk” referred to in s.36(2)(aa) of the Migration Act was the same as that of the “real chance” test applied in s.36(2)(a) of the Migration Act: Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [232]-[246] per Lander and Gordon JJ and at [297] per Besanko and Jagot JJ (Flick J agreeing at [342]). The “real risk” test as stated in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412; CLR at 398 per Dawson J is that “[a] real chance is one that is not remote, regardless of whether it is less than or more than 50 per cent.”
The complementary protection provisions also encompass s.36(2A) of the Migration Act which is as follows:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
Ground 1
Ground 1 is misconceived. The applicant had no right to a “fresh review” of both the Refugee Convention and complementary protection elements of his claims, and even more so in circumstances where he had seemingly accepted the RRT Decision not to grant him a Protection Visa in 2008, but then remained in Australia unlawfully until the judgment in SZGIZ allowed him to apply for consideration of his claims against the complementary protection criterion.
There is no dispute that SZGIZ entitled the applicant to bring a Second Visa Application, but limited in the extent to which his claims could be considered. The AAT, in restricting itself to a consideration of the applicant’s complementary protection claims, did not err when regard is had to the provisions of s.48A of the Migration Act, and the judgment in SZGIZ. The authorities referred to by the Minister (see [9(a)] above) clearly establish that the applicant is not entitled to have his claims considered in their entirety against the criterion in s.36(2)(a) and (aa) of the Migration Act. Further, in AMA15 the Federal Court considered circumstances where, like here, a delegate had considered both refugee and complementary protection criteria, and the Tribunal had only considered the complementary protection criterion. In AMA15 at [48]-[49] per Markovic J the Federal Court found:
48 Contrary to the findings in SZVCH, in my view, the delegate considered criteria that she was not required to consider and which were not relevant to the Second PV Application. Insofar as the delegate did that she acted beyond her jurisdiction. The Tribunal's role on a review is to undertake a fresh review of the application which has led to the decision under review. The Tribunal correctly identified that it could only proceed to consider the Second PV Application based on the complementary protection criterion. That approach was consistent with its obligations having regard to ss 414, 415 and 65(1) of the Act. It cannot be said, in those circumstances, that the Tribunal was required to undertake a review of the delegate's decision to the extent it included findings on matters that were not relevant to the criteria upon which the visa the subject of the valid application could be granted. The Tribunal exercised the powers and discretions conferred on it by the Act, as it was entitled to do. It considered the delegate's decision in that context.
49 For completeness I note that the Tribunal recorded in its decision at [8] and [9] that it told the appellant that it was proceeding on the basis that it would only consider his claims pursuant to s 36(2)(aa). To the extent it differed from the approach of the delegate, the appellant was on notice of that. In those circumstances it cannot be said that there was in that regard any breach of s 425 of the Act.
While the Delegate may have exceeded jurisdiction in considering s.36(2)(a) and (aa) of the Migration Act, it is well established that where there is an error in the Delegate’s Decision, the AAT Decision, if not in error in its own regard, will cure any defect or error in the Delegate’s Decision because the AAT conducts a fresh review: Migration Act, s.415(1); Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.
At CB 176 at [10] the AAT noted:
The Tribunal began the hearing by providing introductory comments and explaining that as a result of the decision in SZGIZ v Minister for Immigration and Citizenship [2013) FCAFC 71, the applicant was able to make a new application for protection and have it considered under the complementary protection provisions of the Act. The Tribunal explained to the applicant that it could only consider his claims in accordance with s.36(2)(aa) of the Act. The applicant indicated he understood this to be the case. The Tribunal also explained the definition of 'significant harm' as set out in s.36(2A) of the Act.
That the applicant indicated to the Tribunal he was aware, and furthermore accepted, his claims would only be considered with reference to the “relevant matter” being s.36(2)(aa) of the Migration Act, indicates that this ground is not just misconceived, but also arguably mischievous. In any event, for the reasons set out above the applicant was only entitled to review of the circumstances related to his complementary protection claims, and not the Refugee Convention claims.
Ground 1 is not made out and establishes no jurisdictional error in the AAT Decision.
Ground 2
In ground 2 the applicant appears to raise an issue with the AAT referring to the findings made by the “differently constituted” RRT and asserting the AAT made no findings of its own, but rather relied on those previously made in the RRT Decision.
The Court notes the following comments made in Wang at [77] per Gummow and Hayne JJ:
Seeking to “preserve” some findings of fact made at an earlier review assumes that no circumstance relevant to those facts has changed in the intervening time. It assumes, for example, that conditions in the country of origin have not changed and, in a case like the present, that the beliefs and intentions of the person who has sought protection have not changed in any material way.
To the extent the AAT did have regard to the claims made by the applicant in the First Visa Application, and compared them with the claims made in the Second Visa Application, that comparison was relevant to an assessment of the applicant’s credibility. In relation to the weight to be given to the evidence before the RRT and the RRT’s findings as evidence related to the credibility of the applicant’s claims, the issue of credibility was a matter for the AAT: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J; Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, where, as here, there is no issue as to the AAT’s findings on the credibility of the applicant such that an error of the kind established in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ might arise.
The following findings made in the AAT Decision make it clear that the AAT evaluated and weighed a number of considerations before coming to the conclusions it reached:
a)with regard to the fear of significant harm on the basis of the applicant’s Catholic religious beliefs at CB 185 at [62]-[63] and CB 186 at [65] as follows:
62. ... the Tribunal found his evidence in this respect to be vague and evasive. It also found his evidence, even within the Tribunal hearing was inconsistent, as for example when he repeatedly claimed he would be harmed for his Catholic faith, but then said that it is now okay… The Tribunal rejects the applicant's claim where he said that it might not matter how much evidence he provides. In fact, the applicant has only provided vague, general and inconsistent claims as to his involvement with the Catholic church in China. Even if the Tribunal was to give the applicant the benefit of the doubt, which it does not in this respect, and even if it found he was likely to practice the Catholic faith if he returns to China, it finds the relevant country information indicates there is not a real risk that he would not be targeted for significant harm, particularly in light of his profile and lack of political activism
63. The Tribunal considered the applicant's evidence where he claimed that he was assaulted and detained and mistreated by police when he was transporting some children home after Bible class. While the Tribunal understands he might feel some frustration when he was asked to provide detail of this at its hearing, having provided it previously, it does not accept that he was unable to remember details as he claimed. He claimed he sustained a scar on his leg and lost teeth. When the Tribunal asked the applicant why after all these years anyone would want to harm him now, even if that particular incident occurred, he replied that if he goes home he would seek revenge. The Tribunal considers this reply, and his lack of credibility as a witness of truth, coupled with the significant inconsistencies put to the applicant at the hearing, leads to the proper conclusion that the applicant was not attacked as he claims at any time when living in China. To the extent that the applicant claims to have scars, the Tribunal rejects that these were sustained as he claims to have been sustained. They could have been sustained in a number of ways, and it is not necessary for the Tribunal to determine how exactly they were actually sustained…
65. …The Tribunal observed the applicant in fact said at the hearing that “if I go home now the government wouldn't harm me. I can guarantee 100%”. The Tribunal accepts that is the case, based on all the evidence.
(As indicated at [4(k)] above the second “not” in the last sentence at CB 185 at [62] is plainly a typographical error).
b)in respect of the new claim regarding a property dispute having arisen while the applicant remained in Australia unlawfully which the AAT considered despite it not being raised in the First Visa Application at CB 186 at [67] and CB 187 at [69]-[70] as follows:
67. In respect to the claim that the applicant fears significant harm for reasons of a property dispute, the Tribunal accepts there is reliable country information as to the existence of property disputes in China. However, it finds the applicant's evidence that he faces significant harm because he purchased land and that his neighbours have used, or intend to use, part of the land for their own use as a road to access other land, is not credible. It found his evidence on this matter to be repetitive, vague and unconvincing. As put to the applicant at the hearing, he did not raise this matter in his first application for a protection visa, to which the applicant claimed it was not an issue at that time… Having regard to this evidence, and considered in light of its adverse credibility findings, and to the applicant's apparent willingness of disregard Australia's relevant migration laws, including ignoring the requirement to maintain a current visa and not to work without a work permit, the Tribunal rejects his explanation that the land dispute only became an issue after his first application for protection. Rather, having regard to all of the evidence, and to his evasiveness in answering the question put to him at hearing over whether he engaged a lawyer to act for him in the dispute, the Tribunal is not satisfied that there has been a land dispute at all. It finds after considering all of the evidence, that there has not been a dispute over land with his neighbours such that it would give rise to a real risk of the applicant suffering significant harm if he returns to China. Further, and for similar reasons, the Tribunal rejects his claim that he would face physical conflict with his neighbours attempting to reclaim the claimed dispossessed land …
69. The Tribunal considers it noteworthy that when it asked whether there had been any relevant developments since his last interview with the delegate, that is the interview held on 4 July 2014, the applicant replied that there had been no relevant developments. It considers that if there was an ongoing dispute that there would have been some further action or conflict between his neighbour and his family even in the applicant's absence. However, the applicant's evidence is that there has not been. The Tribunal considers the applicant's response is all the more significant in light of his statement made at the hearing that his wife was threatened by police “10 or 20 years ago", and not subsequently. It considers that if there had been more recent threats the applicant is likely to have been informed about them.
70. The Tribunal considered the applicant's claim at the hearing where he said that the people who bashed him are still there and they will harm him. As it does not accept on the evidence before it that there is an ongoing dispute over land, it rejects the applicant's proposition that his neighbours would inflict any harm on the applicant if he returns to China now. It follows from this that the question of state protection does not arise as the Tribunal finds there is not a real risk that the applicant will be targeted for harm for reasons of a claimed land dispute, or for reasons of religion. Nor is it necessary for the Tribunal to make findings in respect to internal relocation in circumstances such as in this case where there is not a real risk of significant harm.
Contrary to the applicant’s assertion, the AAT did make findings independent of those made in the RRT Decision, and furthermore the AAT sought to consider, and did in fact inquire into and seek responses from the applicant, regarding changes and developments that have occurred since the applicant’s First Visa Application was determined. The Court considers the AAT doing so evinces an intention to make findings of its own. The Court finds that the AAT undertook a fresh assessment of the applicant’s claims, and assessed the weight to be given to the applicant’s claims. Ground 2 is not made out, and establishes no jurisdictional error in the AAT Decision.
Duty to a self-represented litigant
In circumstances where a party is unrepresented the Court must remain alert to the possibility of legal error in the AAT Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. In that regard the Court makes the following observations:
a)the AAT afforded the applicant procedural fairness pursuant to Pt.7 Div 4 of the Migration Act, including:
i)in a number of instances placing the applicant on notice of possibly determinative issues; and
ii)extending an opportunity for his representative to provide written submissions, an opportunity of which the applicant did not avail himself,
such that no jurisdictional error in an SZBEL sense is evident;
b)there is no evidence that the AAT had a pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake any proper evaluation of the relevant materials, nor was there any evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the AAT, might reasonably apprehend that the AAT may not have brought an impartial mind to the resolution of the question to be decided: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [35] and [72] per Gleeson CJ and Gummow J; Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ;
c)there were sufficient and logical grounds, such as rejecting the applicant’s claims to be a practising Catholic, and country information indicated the practising of Catholicism in China did not invite significant harm or adverse consequences in any event, for the AAT to make a finding that the applicant did not face a real risk of significant harm for reasons of his religious beliefs if he returned to China: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 at [37]-[42] per Heydon, Crennan and Bell JJ; and
d)on the face of the AAT Decision there is no indication the AAT did not allow the applicant to properly deal with his claims or make necessary inquiries of the applicant in seeking to make critical factual findings: NAOA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration & Border Protection & Anor (No.2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.
The Court is satisfied there is otherwise no jurisdictional error in the AAT Decision.
Conclusion and orders
The Court has concluded that the AAT Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed, and the Court orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 10 April 2018
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
1