BTY15 v Minister for Immigration
[2018] FCCA 701
•22 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTY15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 701 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China on account of her religion – applicant not believed – grounds of review advanced not pointing to any jurisdictional error – consideration of the impact of a purported s.438 certificate – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 43A, 48A, 417, 425, 438 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 SZGIZ v Minister for Immigration [2013] FCAFC 71; (2013) 212 FCR 235 SZVDCv Minister for Immigration [2018] FCAFC 16 |
| Applicant: | BTY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2423 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The application filed on 3 September 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2423 of 2015
| BTY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 August 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 15 March 2018.
The applicant, a citizen of China, arrived in Australia on 10 January 2008, on a Subclass 580 visa.[1]
[1] Court Book (CB) 33
On 12 March 2009, the applicant applied for a protection visa.[2] The applicant claimed to fear harm on the basis of her Tibetan Buddhist faith.[3] On 18 May 2009 a delegate of the Minister refused to grant the applicant a protection visa.[4] On 12 July 2013, the applicant made an application for Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (Migration Act),[5] which was refused on 8 August 2013.[6]
[2] CB 1-28
[3] CB 27-28
[4] CB 29-44
[5] CB 53
[6] CB 83
On 16 July 2013, following the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration[7] (SZGIZ), the applicant lodged a second protection visa application.[8] That application was refused by the delegate on 28 April 2014.[9]
[7] [2013] FCAFC 71; (2013) 212 FCR 235. The relevant effect of SZGIZ was that s.48A of the Migration Act did not prevent an applicant making a further protection visa application for assessment under the criterion in s.36(2)(aa)
[8] CB 54-82
[9] CB 92-110
On 28 May 2014, the applicant applied to the Tribunal for review of the delegate’s decision.[10] On 22 January 2015, the Tribunal wrote to the applicant, inviting her to appear at a hearing on 23 April 2015.[11] On 23 July 2015, the applicant appeared at a hearing before the Tribunal.[12] On 5 August 2015, the Tribunal affirmed the decision under review.[13] On 3 September 2015, the applicant filed an application to show cause in this Court.
[10] CB 112-113
[11] CB 116
[12] CB 124-126
[13] CB 136-147
Applicant’s claims for protection
In a written statement attached to her second protection application, the applicant made the following claims:[14]
a)the applicant’s parents had a close family friend who was a Tibetan Buddhist monk, who would frequently visit the family. Some people in the applicant’s village converted to Tibetan Buddhism. The applicant was married at age 17 under a “fraud arrangement”. She had two children to her husband, who used to beat her and forbid her food. The applicant’s parents told the applicant to tolerate the abuse for the sake of her children;
b)the applicant prayed to Buddha every day, and preached Buddhism. On 2 July 2005, the police discovered the applicant’s materials relating to her preaching of Tibetan Buddhism. The applicant was detained for 20 days at a police station. She was tortured during this period, required to write “statements of promise” and denied food and sleep. A friend sponsored the applicant’s release, but she was kept under surveillance and was required to report to the local police station;
c)in April 2007, the applicant’s father visited her, bringing her VCDs about Tibetan culture. The applicant invited her neighbours to watch them with her. The police heard about this, accusing the applicant of “preaching of cult and supporting of anti-government”. The materials were confiscated and the applicant confined for four months. The applicant was questioned and sexually harassed, and she attempted suicide. The applicant’s parents “pulled some connections” to secure her parole. The applicant’s husband became more abusive following her release; and
d)the applicant was again required to report to police. In response, the applicant’s parents borrowed some money to send the applicant and her son to Australia. In March 2008, the Chinese government arrested many Tibetan Buddhists, including the applicant’s parents, who were questioned repeatedly. The applicant became scared to return to China and applied for a protection visa in 2009. Right before the Tribunal hearing, there were rumours that the Chinese secret police were watching Chinese citizens living overseas. The applicant feared that the Chinese government would learn of her refugee application.
[14] CB 78-79
Tribunal decision
The Tribunal made adverse credibility findings in respect of the applicant, concluding that she had manufactured her claims in order to obtain a visa.[15] The Tribunal referred to a number of deficiencies in the applicant’s evidence, in particular:
a)her inability to explain the difference between Tibetan and Chinese Buddhism;[16]
b)her apparent lack of knowledge that the Dalai Lama was the leader of Tibetan Buddhists and that Tibetan Buddhist Temple services were held in the Tibetan language;[17]
c)the inconsistency between the applicant’s claim to have obtained a passport while imprisoned for distributing pamphlets, and independent country information which indicated that the operation of the Passport Law of the People’s Republic of China 2006 prevented the issue of a passport to persons defending a criminal case, who were criminal suspects, or who were serving a criminal sentence;[18] and
d)the inconsistency between the applicant’s claim to have departed China legally, and independent country information, which indicated that persons serving prison sentences would not be allowed to leave China.[19]
[15] [40] and [45]
[16] [41]
[17] [42]
[18] [43]
[19] [44]
The Tribunal did not accept that the applicant had been arrested and detained in either 2005 or 2007, that she was ever under surveillance, or that she ever had to report to the police or a detention centre.[20] The Tribunal did not accept that the applicant had suffered domestic violence from her husband, or that she was hit on the head, resulting in memory loss.[21]
[20] [45]
[21] [46]
The Tribunal ultimately rejected the totality of the applicant’s claims, or that she had an adverse religious or political profile prior to her departure from China to Australia.[22] On the basis of its adverse credibility findings, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm if returned to China, and accordingly affirmed the decision under review.[23]
[22] [48]-[50]
[23] [51]-[52], [55]
The present proceedings
These proceedings began with a show cause application filed on 3 September 2015. The applicant continues to rely on that application. The ground in it is:
Although I provided many supporting documents, the Tribunal did not consider the weight of those supporting documents. I had healthy issues so my memory is not good. The Tribunal pointed out that my memorized issues, showing that I am not a genuine refugee applicant.
(errors in original)
I also have before me as evidence the court book filed on 29 October 2015 and the affidavit of Mia Wells, made on 30 June 2017, to which are exhibited documents purportedly the subject of a certificate issued under s.438 of the Migration Act.
Only the Minister prepared written submissions in advance of today’s hearing in accordance with procedural orders made by a Registrar and me.
I invited oral submissions from the applicant this afternoon. She appeared to have difficulty formulating her thoughts. I asked if she had any problem with the Tribunal’s decision or the process followed by the Tribunal. She initially said that there was no problem, and that she did not want to return to China. Later, she referred to an asserted health problem which affected her memory as a result of being hit on the head by her husband. I noted that this was dealt with in the Tribunal decision. The applicant said that she wanted an opportunity to furnish more information. I noted that the current proceedings had been on foot since 2015.
After hearing from the Minister’s solicitor I invited the applicant to make further submissions in reply. She again sought an opportunity for more time to submit documents, and, on being told that that opportunity would not be forthcoming, the applicant had nothing further to say.
The Minister’s submissions deal adequately with the ground of review advanced. I agree with those submissions.
First, it is apparent on the face of the Tribunal’s decision record that it did consider the documents provided to it by the applicant. The Tribunal referred to the relevant documents at [16] of the decision record.[24] In respect of the certifications and photographs put before the Tribunal, it considered those documents at [18]-[19] of its decision record.
[24] CB 120, 127-129
The Tribunal referred[25] to a medical certificate dated 24 March 2015, presented by the applicant, which indicated that the applicant was suffering from “L ear pain, L tinnitus, depression and insomnia” on 24 March 2015.[26] The applicant appeared before the Tribunal on 23 July 2015, some four months after the medical certificate was issued, to give evidence and present arguments. There was nothing before the Tribunal, nor is there anything before the Court, to indicate that the applicant was unable to effectively participate in the hearing or that she was otherwise denied a “real and meaningful” hearing.[27] The process as contemplated by s.425 of the Migration Act was therefore not “subverted by a want of an appreciation on the part of the Tribunal that the applicant’s presentation of [her] case may have been adversely impaired.”[28]
[25] [16]
[26] CB 127
[27] Minister for Immigration v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]
[28] Minister for Immigration v SZNVW [2010] FCAFC 41 per Keane CJ at [37]
Secondly, The Tribunal’s decision record indicates that the applicant raised a claim in relation to memory loss as a result of being hit in the head by her husband because of her faith.[29] The Tribunal considered this claim, but on the basis of its adverse credibility findings, found that no such incident had occurred and therefore that the applicant was not suffering from resultant memory loss.[30] Credibility findings are generally a matter for the Tribunal, and this particular finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.[31]
[29] [17], [21]
[30] [46]
[31] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J; Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Section 438 certificate
The Minister’s submissions also raise an issue concerning the purported s.438 certificate. The certificate is reproduced at CB 111.
On the basis of Beach J’s reasoning in MZAFZ v Minister for Immigration[32] (MZAFZ), the Minister accepts that the s.438 certificate is, on its face, invalid.
[32] [2016] FCA 1081 at [36] – [37]
Further, there is no evidence before the Court to suggest that the Tribunal disclosed the certificate to the applicant, or invited her to comment on it. Nor does the Tribunal’s decision record address the certificate. On that basis, this matter would appear to raise the issues addressed by the Federal Court in Minister for Immigration v Singh (Singh)[33] and MZAFZ.
[33] (2016) 244 FCR 305. The Minister unsuccessfully sought special leave to appeal from the Full Court’s decision: Minister for Immigration v Singh & Anor [2017] HCATrans 107
The documents purportedly covered by the certificate are substantially reproduced in the court book and are exhibited to the affidavit of Ms Wells. They comprise a letter from the former Refugee Review Tribunal (RRT) to the Secretary of the Minister’s Department dated 15 September 2011 relating to the outcome of a review of a decision concerning a protection visa application by the applicant’s son.
The documents also comprise a letter to that applicant advising him of the outcome of the review and the decision record of the RRT. Hypothetically, a valid certificate might have been issued concerning the Tribunal decision in respect of the applicant’s son on the basis that it was a separate application having no bearing on the present applicant’s case and that therefore there was no reason to disclose that decision to her. That, however, was not the basis upon which the certificate was issued. The basis for the issue of the certificate was that “the disclosure of this information would be contrary to the public interest because Folios 47 to 53 contain information relating to an internal working document and business affairs”.[34]
[34] CB 111
There is nothing to indicate that the Tribunal acted upon the documents in any way. Moreover, it does not appear from the RRT decision concerning the applicant’s son that there was any relevance to this applicant’s review. It follows, in my view, that the failure by the Tribunal to disclose to the applicant either the certificate or the documents purportedly covered by it gives rise to any jurisdictional error.
In other respects, I agree with the Minister’s submissions concerning the certificate issue.
As noted above the documents covered by the certificate comprise a letter to the Minister’s Department from the RRT sent pursuant to s.43A of the Migration Act, covering a copy of the RRT’s decision made on 15 September 2011 in respect of the applicant’s son. These documents are reproduced in the court book.[35]
[35] CB 45-52
For the reasons that follow, the present case is distinguishable from Singh and MZAFZ.
First, Singh does not stand for the proposition that every certificate issued pursuant to s 438 must be disclosed to the applicant.[36]
[36]CKG15 v Minister for Immigration & Anor [2017] FCCA 938 at [99]
Secondly, the Full Federal Court in Minister for Immigration v BJN16[37] concluded at [62] that while it may be accepted that the non-disclosure of the existence of a certificate may give rise to a denial of procedural fairness, it does not follow that this will always be the case. The Full Court held that it is necessary to examine all the circumstances and the consequences of the omission for the applicant.[38]
[37] [2017] FCAFC 197
[38] At [62]
In the present case, the documents covered by the certificate are before the Court.[39] It is apparent that the documents concerned the RRT decision in relation to the applicant’s son. They were of no, or no more than “passing contextual”, relevance to the Tribunal’s decision.[40]
[39] CB 45-52
[40] AVO15 v Minister for Immigration [2017] FCA 566 at [87]-[89] (AVO15)
In light of the above, it can be inferred that the Tribunal did not act upon the certificate. In any event, disclosure of the certificate could not have made any difference to the Tribunal’s task.[41] As Barker J held in AVO15,[42] to the extent that there may have been “some technical breach of the disclosure obligations arising under the Act”, the applicant in the present case did not lose any opportunity to advance her case as a result of the breach.[43]
[41] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 (BEG15) at [63]-[68]
[42] At [91]
[43] See also SZVDCv Minister for Immigration [2018] FCAFC 16
Conclusion
I conclude that the decision of the Tribunal is free from any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800. The applicant told me she did not know what to say on that issue. I explained to her the consequences of a costs order. She did not wish to make any further submissions.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 March 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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