BTT15 v Minister for Immigration

[2016] FCCA 1353

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1353

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
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Applicant: BTT15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2411 of 2015

Judgment of: Judge Emmett

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Louise Buchanan
(Australian Government Solicitor)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2411 of 2015

BTT15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 2 September 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 12 August 2015 and handed down on the same day (“the Tribunal”).

2. At the request of the first respondent, the matter was listed for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the application did not raise an arguable case for the relief sought.

3. 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.”

4. Relevantly, r.44.13 of the Rules 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.”

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

   “Background and the Applicant’s Claims

   5. The applicant is a Chinese national who first arrived in Australia on 23 November 2013 on a Visitor visa.

   6. On 10 January 2014, the applicant lodged an application for a Protection visa. In a written statement annexed to the application, the applicant claimed to fear harm because he petitioned the Complaints Bureau of Gaocheng City, after the village committee refused to provide compensation that was promised to his family for the acquisition of their land in March 2010. The applicant claimed that they were entitled to receive new land and monetary compensation however they only received the land. In April 2013, on his way from petitioning to the Complaints Bureau, the applicant was beaten and told to stop his petitioning activities. After this, the applicant’s mental health deteriorated and he obtained a visa to Australia.

   7. By letter dated 30 June 2014, the applicant was invited to attend an interview with a delegate of the first respondent on 7 August 2014, however the letter was returned to the Department ‘unclaimed’. The applicant did not attend the interview and on 7 August 2014, the application for the Protection visa was refused.

   8. On 28 August 2014, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

   9. On 27 July 2015, the applicant attended a Tribunal hearing, at which he claimed that he feared harm from the person who arranged for him to be beaten, the former secretary of his village, although the applicant had claimed in his written statement that that person had moved to Beijing at the time he lodged his petition. To the Tribunal, the applicant claimed that he first complained about the failure to receive monetary compensation to the city government in February 2011 and was beaten by people connected to the village committee on his way from lodging a petition.

   Tribunal Decision

   10. On 12 August 2015, the Tribunal affirmed the decision not to grant the applicant a Protection visa.

   11. The Tribunal found the applicant’s evidence to be unpersuasive and lacking in credibility for the following reasons:

   11.1. The applicant’s evidence to the Tribunal that he first petitioned to the city government in February 2011 and was beaten was inconsistent with his evidence in his written statement. The applicant changed his evidence when this inconsistency was drawn to his attention at the Tribunal hearing.

   11.2. The applicant’s claim that he continued to fear harm from the former village secretary was difficult to reconcile with his evidence in his written statement that he (the former secretary) had moved to Beijing with his family by the time he lodged the petition in 2013.

   11.3. The applicant was unable to identify any difficulties faced by his family since his departure from China other than referring to them facing financial difficulties and receiving threats not to pursue compensation. Neither could the applicant articulate any difficulty he would face if he returned to China other than stating that he intended to pursue compensation and wanted to remain in Australia.

   11.4. The applicant failed to provide documentary evidence regarding the acquisition of the land, notwithstanding his indication that he had access to such evidence, and further, had been granted additional time to provide it to the Tribunal: [50], see also [29].

   11.5. The applicant’s explanation that he did not attend the interview with the delegate because he was working cast doubt on the genuineness of his claims.

   12. The Tribunal rejected all of the applicant’s claims, including that his family’s land was expropriated, that he and his family were inadequately compensated, and that he was beaten because he petitioned for the inadequate compensation. The Tribunal was not satisfied that the applicant could be granted a Protection visa either on Convention or complementary protection grounds.”

Proceedings before the Court

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

2. At the outset of the proceeding, I explained to the applicant that the role of this Court was very different to that of the Tribunal and that the only issue before this Court was whether or not the decision of the Tribunal was made according to law. 

3. I informed the applicant that his application had been set down for a hearing pursuant to r.44.12 of the Rules on the basis that the first respondent contended that the grounds of his application failed to disclose an arguable case for the relief claimed.

4. On 15 October 2015, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application, any further evidence and submissions in support. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language, together with a copy of r.44.12 of the Rules.

5. The applicant confirmed that he has not filed any documents, either in accordance with those directions or otherwise. The applicant also confirmed that he did not have any documents to provide to the Court in support of his application. 

6. The applicant confirmed that he relied on the grounds of his initiating application, filed on 2 September 2015, as follows:

   “1) AAT failed to consider my actual living condition in China.

   2) AAT unreasonable suspect the truthfulness of my claims just because of the absence of the interview that was invited by the Department.

   3) The tribunal affirms the decision of the Department without taking my claims at the tribunal into consideration.

   4) AAT failed to prudently consider my risk if I return to origin.

   5) I hope the Federal Circuit Court of Australia could consider my situation back to China and do justice for me.”

   (Errors in original).

7. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of each of those grounds. However, the applicant had nothing to say in relation to any of the grounds of his application.

8. The applicant was also invited to say whatever he wished in support of his application generally. However, he declined to make any further comment. Following the submissions of the solicitor for the first respondent, Ms Buchanan, the applicant was again invited to say whatever he wished, either in response to anything he had heard or in support of his application generally.  Again, the applicant declined to say anything.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider the applicant’s “actual living condition in China”. That assertion was unsupported by any further particulars, either written or oral. 

2. The essence of the applicant’s claims is that he feared harm in China because of various complaints he had made to the Chinese authorities in relation to the inadequacy of compensation that he was given following the compulsory acquisition of his land in China. 

3. The Tribunal’s decision record makes clear that it explored the applicant’s claims with him in some detail at the hearing and put to him matters of concern that it had about his evidence, and noted his responses. 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 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 – 170 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 at 348 per Heerey J).

4. The Tribunal referred to country information in respect of compulsory land acquisition in China and identified with particularity the country information to which it referred. Ultimately, while the Tribunal accepted that compulsory land acquisition occurs in China, the Tribunal comprehensively rejected the applicant’s claims to have suffered harm by reason of any complaint he had made to the Chinese authorities.

5. The Tribunal noted that the applicant gave his evidence in broad and imprecise terms; that he was unwilling to provide detailed evidence; and, that he had to be prompted repeatedly to do so. The Tribunal further noted that, when pressed for specific information, the applicant’s evidence became confused and inconsistent, and that the inconsistencies in the applicant’s evidence related to matters of central significance in the context of his overall claims. The Tribunal found that the inconsistencies in the applicant’s evidence were not accompanied by plausible explanations. In particular, the Tribunal noted that, when asked whether the applicant’s family had faced any difficulty since his departure from China, the applicant initially only identified financial difficulties. The Tribunal noted that, when prompted further, the applicant described some vague threats and warnings for the family to not pursue the compensation claim further.

6. The Tribunal also noted that the applicant had difficulty articulating the harm he now fears in China. The Tribunal noted that the applicant stated that he intended to pursue his claim for compensation in China, but he was unable to describe what further steps he would take in order to do so.

7. The Tribunal also referred to the applicant’s failure to attend an interview with a delegate of the first respondent (“the Delegate”). The Tribunal found that the reason the applicant provided for that failure, namely that he was working, cast further doubt upon the genuineness of his claims.

8. Ultimately, the Tribunal found the applicant’s evidence to be unpersuasive and lacking in credibility. The Tribunal was not satisfied that the applicant’s land was expropriated, or that he was inadequately compensated. The Tribunal was not satisfied that the applicant complained to his village committee or to the Gaocheng City government.  The Tribunal rejected the applicant’s claim of ever having been beaten by the Chinese authorities. Nor did it accept that the applicant or his family had ever been warned against pursuing compensation.

9. The Tribunal was not satisfied that the applicant’s family had experienced any difficulties other than financial difficulties since the applicant’s departure from China. Further, given his evidence that he was in paid employment for several years prior to his departure from China, the Tribunal was not satisfied that any financial difficulty that the applicant may experience on return to China would amount to serious or significant harm. Ultimately, the Tribunal found that the applicant did not satisfy the criteria for a protection visa either under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1969 (Cth).

10. The first respondent tendered a bundle of relevant documents filed on 21 October 2015, and marked ‘Exhibit 1R’. Exhibit 1R contained the applicant’s written statement of claims in support of his protection visa application. Those claims essentially related to the compulsory acquisition of the applicant’s land, following which he made various complaints to the Chinese authorities in relation to the inadequacy of the compensation that he was given. In that statement, the applicant also stated that the he was beaten for petitioning for further compensation. There is otherwise no express claim relating to the applicant’s actual living condition in China.

11. In the absence of any further particulars from the applicant, I understand the applicant’s complaint that the Tribunal did not consider his “actual living condition in China” to relate to the difficulties that the applicant may face if he returned to China. As stated above, the Tribunal found that any financial difficulty the applicant may experience on his return to China would not amount to serious or significant harm, given the applicant’s evidence that he was in paid employment for several years prior to his departure from China.

12. The Tribunal’s findings would appear to be open to it on the materials and evidence 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). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

13. Accordingly, Ground 1 does not raise an arguable case for the relief claimed.

Ground 2

1. Ground 2 asserts that the Tribunal unreasonably suspected the truthfulness of the applicant’s claims due to his failure to attend an interview with the Delegate.

2. Ground 2 is unsupported by any further particulars, either written or oral.

3. As stated above, the Tribunal identified several grounds for its adverse credibility findings. Those grounds related to the manner in which the applicant gave his evidence, the lack of detail in the applicant’s evidence and his unwillingness to provide such detail, the inconsistencies the Tribunal found in relation to the applicant’s claims generally, and the unsatisfactory nature of the explanations provided by the applicant when those inconsistencies were raised with the applicant.

4. As stated above, the Tribunal referred to the applicant’s failure to attend the interview before the Delegate as casting further doubt upon the genuineness of the applicant’s claims. The Tribunal was entitled to have regard to that conduct in considering the applicant’s overall credibility. As stated above, the Tribunal’s adverse credibility findings would appear to be open to it on the evidence material before it and for the reasons it gave.

5. Accordingly, Ground 2 does not raise an arguable case for the relief claimed.

Ground 3

1. Ground 3 asserts that the Tribunal affirmed the decision of the Department without taking the applicant’s claims into consideration.

2. In the absence of any further particularisation, a fair reading of the Tribunal’s decision record does not appear to support such a complaint. As stated above, the Tribunal summarised the various exchanges that it had with the applicant about his evidence and identified with particularity the country information to which it had regard. The Tribunal put to the applicant matters of concern that it had about his evidence and noted his responses.

3. A fair reading of the Tribunal’s decision record makes clear that the Tribunal took the applicant’s claims into consideration in concluding that the applicant was not a person to whom Australia owed protection obligations. That conclusion was based on the adverse credibility findings made by the Tribunal which, as stated above, would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave.

4. Accordingly, Ground 3 does not raise an arguable case for the relief claimed.

Ground 4

1. Ground 4 asserts that the Tribunal failed to consider the risk the applicant may face if he was to return to China.

2. Again, without further particularisation, a fair reading of the Tribunal’s decision record does not support such a complaint. As stated above, the Tribunal specifically considered what may happen to the applicant if he was to return to China. The Tribunal was satisfied that there was not a real chance of risk that the applicant would suffer any serious or significant harm should he return to China.  As stated above, those findings would appear to be open to the Tribunal on the evidence and material before it, and for the reasons it gave.

3. Accordingly, Ground 4 does not raise an arguable case for the relief claimed.

Ground 5

1. Ground 5 is a bare statement of the applicant’s hope that this Court would consider his situation back in China and do justice for him. 

2. Such a statement does not identify any error on the part of the Tribunal capable of review by this Court. 

3. Accordingly, Ground 5 does not raise an arguable case for the relief claimed.

Conclusion

1. While 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. The Tribunal referred to the relevant law in affirming the decision under review and the findings and conclusions that it made would appear to be open to it on the evidence and material before it for the reasons it gave.

1. 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 2 September 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  15 June 2016