BUI15 v Minister for Immigration

[2017] FCCA 569

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUI15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 569

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.48A, 424AA

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Applicant: BUI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2442 of 2015

Judgment of: Judge Barnes

Hearing date: 10 March 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2442 of 2015

BUI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 13 August 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of China, first arrived in Australia on 1 May 2001 as the holder of a tourist visa.  He first applied for a protection visa on 30 May 2001.  The application was refused.  That decision was affirmed by the Refugee Review Tribunal on 24 June 2002 having regard to the Refugees Convention criterion. 

3. On 6 January 2014 (after the complementary protection criterion was introduced in March 2012) the Applicant lodged a second application for a protection visa on the basis that the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 had reasoned that s.48A of the Migration Act 1958 (Cth) (the Act) did not prevent an applicant from making a further protection visa application for assessment under the complementary protection criterion.

4. On 28 May 2014 a delegate of the Minister refused to grant the protection visa. The Applicant sought review. He attended a Tribunal hearing. It is the Tribunal decision of 13 August 2015 in relation to the second protection visa application that is the subject of these proceedings.

5. Relevantly, in its reasons for decision the Tribunal recorded that the issue before it was whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China there was a real risk he would suffer significant harm (that is, whether the Applicant met the complementary protection criterion). 

6. Having regard to the reasoning in SZGIZ, the Tribunal found that it did not have power to consider the Refugees Convention criterion in the present review.  It proceeded on the basis that it could only consider the Applicant’s claims under the complementary protection provisions.

7. The Tribunal summarised the Applicant’s claims made in connection with the 2014 visa application.  It recorded that he claimed that he departed China as a tourist to escape persecution as a Falun Gong practitioner, that he had been tortured mentally and physically and that he feared harm and mistreatment by the authorities and a denial of his right to access social benefits, accommodation and household registration against which he would protest, resulting in persecution.

8. With his visa application the Applicant submitted a certified copy of his Chinese passport issued in December 2000 showing two renewals, the last of which was said to expire in December 2014.

9. The Tribunal summarised what occurred in the departmental interview and at the Tribunal hearing.  The Tribunal decision is the only evidence before the court in relation to what occurred at the hearing. 

10. The Tribunal described the Applicant’s elaboration of his claims at the hearing and his explanation that the main reason for making the current application was that he suffered from several health conditions and would not survive if forced to return to China, that he lacked health insurance and would not have a job, that his mother was elderly with little money, his sister retired and that his brother had lost his job.

11. The Tribunal discussed with the Applicant his claim in his initial protection visa application that he was a Falun Gong practitioner.  It asked him whether he still had fears on that basis.  It recorded that he stated that he did, that he had practised for more than two months in around 1998, but also that he hardly practised at all and was primarily involved in passing out pamphlets and putting up posters, and that he had been arrested putting up posters and detained for six months, tortured and beaten.  He described the circumstances of his release and whether that involved the payment of a bribe.  He told the Tribunal he had never practised Falun Gong in Australia. 

12. The Tribunal also recorded the Applicant’s evidence about the circumstances in which he lost his job in China and his claims that he had found that his household registration had been cancelled after he came to Australia.  In this context the Tribunal asked the Applicant about his medical conditions.  Relevant to the grounds of review, it recorded (at paragraph 44):

    … The applicant told the Tribunal that he suffered from a cardiac condition and diabetes.  The applicant told the Tribunal that he did not have a pension or medical card in China and did not think he would be able to access appropriate treatment in that country.  His doctor in Australia had told him that the medications he had been prescribed would not be available to him in China.  The applicant showed the Tribunal prescriptions for at least six medications and claimed that none of the medications were imported into China.  The Tribunal asked the applicant how his doctor in Australia knew that the medications were not available in China.  The applicant indicated that he did not know but his doctor had said that these medications were only produced in Australia. 

13. The Tribunal also recorded that it put to the Applicant that it found this claim difficult to accept and noted country information that a wide range of medications were available in China.  It also explained that the Chinese government maintained an essential drugs list which aimed to make certain medications available at an affordable price, including medications used to treat chronic diseases such as diseases of the cardiovascular system and diabetes.

14. In response to the Applicant’s claim that he did not have a medical card and that he thought he would not be given another card as he had been fired, the Tribunal put to him country information about the manner in which Chinese citizens are provided with medical insurance, including information indicating that if he were able to restore his hukou he should be able to access health insurance and other medical benefits.  The Applicant indicated that he did not know as he had been absent from China for about 16 years.

15. The Tribunal also put to the Applicant that country information suggested that Chinese citizens generally had little difficulty restoring their hukou after a period abroad provided they “had (sic) obtained foreign citizenship”.  There is clearly a missing “not” in this part of the reasons, when one compares the extract from the Tribunal’s discussion of country information and its findings.  The Tribunal elaborated on that information.   

16. The Tribunal recorded that the Applicant also claimed he was afraid the authorities would make trouble for him and that if he told anyone what had happened to him in the past he would be arrested, beaten and tortured again. 

17. The Tribunal recorded that it put to the Applicant a considerable amount of information. The manner in which it recorded that it did so makes it clear that it invoked the provisions of s.424AA of the Act. The matters put to the Applicant included inconsistencies between his claims in his first protection visa application and his oral evidence to the delegate and to the Tribunal and differences between his first and second protection visa applications including in relation to his Falun Gong practice and claimed detention and whether he was made redundant or fired and when that occurred.

18. The Tribunal also put to the Applicant that at the departmental interview he had said that one of the reasons he was not able to obtain household registration was that he had no documentation to prove he was a Chinese citizen, apart from his expired passport.  The Tribunal explained that this was relevant because the passport he had submitted with the application showed that it had been extended twice in Australia, most recently until December 2014, and that his indicated that he had had some contact with Chinese authorities who recognised him as a Chinese citizen.  The Tribunal put to the Applicant that this suggested that he had provided misleading evidence at the departmental interview.  It recorded (at paragraph 53) relevant to the grounds in the present proceedings:

    …The applicant responded that after he was discharged from hospital in 2010 he had considered returning to China and needed a valid travel document.  The applicant had gone to the Chinese Embassy but there was a large queue.  The applicant spoke to a person who told him that if he paid $200 he would arrange for the passport to be extended.  The man gave the applicant his telephone number and when the applicant got the passport back it contained the two extensions and he noticed some pages had been taken out.  The Tribunal asked the applicant whether he was claiming that his current passport had been fraudulently extended.  The applicant said he did not know. 

19. The Tribunal recorded the Applicant’s explanations for each of the matters that were put to him and also his general comments that no one could guarantee that he would not suffer a further heart attack during the journey back to China and that he feared that he would die if he returned. 

20. The Tribunal referred to a considerable amount of country information in relation to household registration (hukou) and restoring household registration, as well as health care and the availability of medication in China.

21. In its findings and reasons the Tribunal found that it was not satisfied that the Applicant had provided a truthful account of his experiences in China.  It found that, as it had indicated to the Applicant at the hearing, he had given conflicting evidence over time with regard to the timing and duration of his claimed practice of Falun Gong and the level of his involvement in Falun Gong activities.  It pointed out that at times he had claimed to have actively practised Falun Gong both in China and Australia and had given conflicting evidence as to the time he had practised (including around 20 days or for more than two months) and as to whether he had practised in 1996 or 1997 (as he told the delegate) or 1998 as he told the Tribunal, or thereafter given that his evidence to the Tribunal suggested it was late 1999 as he claimed to have been arrested in November 1999. 

22. The Tribunal found the Applicant’s account of his arrest and detention was problematic, having regard to the fact that his evidence about practising Falun Gong in 1996, 1997 or 1998 suggested that he was arrested and detained as a consequence of his Falun Gong activities, despite the fact that the practice of Falun Gong was not banned in China until 1999. The Tribunal acknowledged that the Applicant’s later evidence that he was arrested in November 1999 overcame this difficulty, but had regard to the fact that it was only given after the problems with the earlier evidence had been pointed out by the delegate. It also had regard to inconsistencies in his evidence about whether he was released from detention because the officers realised he was not a genuine Falun Gong practitioner or because his family paid a bribe.

23. The Tribunal also found problematic variations in the Applicant’s evidence with regard to the cessation of his employment in China, noting that he had variously described himself as having been made redundant or fired because of his Falun Gong practice. To the delegate he had claimed he was fired in 1996 or 1997, to the Tribunal he claimed he found out he was fired in either 1999 or June 2000, whereas in his application form he had suggested he was fired after he left China in 2001. The Tribunal considered the Applicant’s explanations for the conflicting evidence. It considered it possible that incorrect or incomplete evidence had been provided by his migration agents in the visa application forms, but found that the Applicant had not adequately explained his conflicting oral evidence. It was not satisfied that the changes in his evidence were attributable to interpreting errors as he suggested.

24. Given the significance of the events in issue, the Tribunal was not satisfied that nerves or the passage of time sufficiently accounted for the Applicant’s inability to consistently and coherently describe the timing, duration and nature of his claimed Falun Gong practice, his subsequent arrest or the loss of his employment. 

25. As a consequence, the Tribunal was not satisfied that the Applicant had any involvement with Falun Gong in China, that he was arrested, detained and mistreated as claimed or fired from his employment by reason of his association with Falun Gong.  It also had regard to his evidence that he had not practised Falun Gong in Australia and had no interest in doing so in China.  It was not satisfied that the Applicant would practise Falun Gong or would wish to do so on return or that he would be regarded by others as a Falun Gong practitioner or as having any association with Falun Gong now or in the reasonably foreseeable future. 

26. Given these findings the Tribunal did not accept that the Applicant would have any interest in speaking out or in protesting against his past treatment in China.  It was not satisfied there was anything in his past experience in China that would lead to a risk of significant harm as a consequence of removal to China now or in the foreseeable future. 

27. The Tribunal did accept that the Applicant had been absent from China for a considerable time and, as a consequence, probably did not have a current hukou.  The Tribunal also considered it possible that he did not currently have health insurance coverage or a valid National ID Card.  However it was not satisfied he would be unable to obtain such documentation if required to return to China and continued (at paragraphs 75-76):

    … Contrary to his claim at the departmental interview, the Tribunal is not satisfied that the applicant’s Chinese passport has expired, or, if it has, the Tribunal is not satisfied that it could not be renewed.  The applicant’s evidence regarding the manner in which the two renewals were placed in his passport, lacked plausibility.  There is nothing on the face of the renewal stamps to indicate that they are anything other than genuine.  The applicant’s own evidence was that he was uncertain whether the renewals were genuine or fraudulent.  The Tribunal is not satisfied that the applicant departed China illegally, nor is there any evidence suggesting that the applicant has obtained foreign citizenship.  On the basis of these findings and the country information, the Tribunal is not satisfied that the applicant would have any difficulty in restoring his previous hukou.

    The Tribunal further finds that the applicant would, as a consequence of restoring his hukou, have access to medical insurance and appropriate treatment and medication for his medical conditions in China.  While it is true that there can be no guarantee that the applicant’s health would not deteriorate, either on the journey to China or following his arrival there, the Tribunal does not accept that there is anything more than a remote possibility of this occurring.  The applicant’s evidence suggests that his medical conditions are being appropriately managed here in Australia.  On the basis of the country information referred to above, the Tribunal is not satisfied that the applicant would be unable to access equivalent medication and treatment in China.    

28. Having regard to the Applicant’s evidence that his mother and two siblings lived in China where he was previously registered, the Tribunal was not satisfied he would have no accommodation or family support on return.  Given his ability to obtain employment in Australia and its findings regarding the Applicant’s experiences in China the Tribunal was not satisfied he would be unable to obtain employment or a source of financial support on return to China.

29. The Tribunal concluded that, having considered all the Applicant’s circumstances, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of removal to China, there was a real risk the Applicant would suffer significant harm.  It was not satisfied he met the complementary protection criterion and affirmed the delegate’s decision.

30. The Applicant sought review by application filed on 7 September 2015.  There are two grounds in the application. 

31. The first ground is as follows:

    The Tribunal failed in taking into account of irrelevant considerations. 

    At paragraph 44, the Applicant raised the concern that ‘his doctor in Australia had told him that the medication he had been prescribed would not be available to him in China”.  “The applicant showed the Tribunal prescriptions for at least six medications and claimed that none of the medications were imported into China.”  The Tribunal failed to consider this issue, but rather take into account of irrelevant consideration by way of discussing the medical structure or system in China from paragraphs 60-68 (errors in original). 

32. As pointed out in submissions for the First Respondent, in this ground the Applicant appears to advance two contentions.  Insofar as it is contended that the Tribunal fell into jurisdictional error in failing to consider evidence about what the Applicant’s doctor told him and his claim that the six medications he had been prescribed in Australia were not imported into China, this contention is not made out.  As set out above, in the course of the Tribunal hearing the Tribunal recorded that the Applicant had showed it prescriptions for six medications and had claimed that his doctor informed him that none were available in China.  As the Tribunal also recorded (in paragraph 44) the Applicant said he did not think he would be able to access appropriate treatment in that country.  In that context, the Tribunal put to the Applicant that it found this claim difficult to accept.  It referred to country information that a wide range of medications was available in China, including at an affordable price. 

33. In its findings and reasons the Tribunal specifically considered the issue of whether the Applicant would have access to medical insurance and, relevantly, appropriate treatment and medication for his medical conditions in China.  It found on the basis of country information that as a consequence of restoring his household registration, he would have access to medical insurance and appropriate treatment and medication.  It was not satisfied he would be unable to access “equivalent” medication and treatment in China.  In reasoning in this way it clearly had regard to the Applicant’s evidence. 

34. Insofar as the Applicant’s contention appears to be that it was necessary for the Tribunal to make a specific finding as to whether the particular medications which had been prescribed for him in Australia would be available in China, it was not necessary for it to do so on the evidence before it.  Rather, it was necessary for the Tribunal to assess, in the context of considering the complementary protection criterion, the Applicant’s claim about the availability of appropriate medicine and treatment in China.  It did so.  As is clear from the reasons for decision the Tribunal understood the Applicant’s claim in this respect.  It considered his claims in determining whether he met the complementary protection criterion. 

1. In oral submissions the Applicant repeated his concern that his doctor had told him that specific medicines that had been prescribed in Australia were not available in China.  The Tribunal understood and considered that evidence in the context of considering whether the Applicant would be unable to access equivalent medication and treatment in China.  There is no basis for any inference that such evidence was overlooked, let alone overlooked in a manner constituting jurisdictional error.  I note that there is no suggestion that there was any evidence before the Tribunal as to any need for particular unique medication. 

2. Insofar as the Applicant takes issue with the Tribunal’s conclusion that it was not satisfied he would be unable to access equivalent medication and treatment in China, in this respect he seeks impermissible merits review.  

3. I also note that, as submitted for the First Respondent, it is for the Tribunal to identify such material as it finds relevant in its reasoning and to give it appropriate weight.  See Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297. This aspect of ground 1 is not made out.

4. The other aspect of ground 1, which reflects the ground as pleaded, takes issue with the Tribunal having regard to country information described at paragraphs 60 to 68 of its reasons for decision (which is said by the Applicant to be a discussion in relation to the medical structure or system in China). 

5. At paragraphs 60 to 68 the Tribunal set out and discussed extracts from independent country information in relation to the provision of health care, medication and treatment in China.  It also subsequently set out country information in relation to household registration relevant to the issue of obtaining medical insurance.  It had regard to such information (which it recorded it had put to the Applicant) including about an essential drug list maintained by the Chinese Government to make certain medication available to treat diseases such as those complained of by the Applicant.  It also referred to a World Health Organization Chinese Representative Office report that health care reforms had enabled China to provide essential (Western and Chinese) medicines to the public at low cost.

6. The Tribunal did not fall into error in referring to relevant country information.  The choice and assessment of country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). The country information considered by the Tribunal was directly relevant to the Applicant’s claim that he feared harm if he returned to China on the basis of his heart condition and his claimed inability to access appropriate medical care and medication in China. Such information formed the basis for the Tribunal’s finding that it was not satisfied that the Applicant would be unable to access “equivalent medication and treatment” in China and that as a consequence of restoring his household registration he would have “access to medical insurance and appropriate treatment and medication for his medical conditions in China.”  Such findings were reasonably open to the Tribunal on the material before it for the reasons which it gave.  Insofar as the Applicant disagrees with such reasoning he seeks impermissible merits review. 

7. Ground 1 is not made out. 

8. Ground 2 is that the Tribunal erred in arriving at a conclusion without supporting evidence. 

9. The particulars are as follows:

   At paragraph 53, the applicant claimed that he paid someone who would arrange for his passport to be extended.  When the applicant got the passport back it contained the two extensions and he noticed some pages had been taken out.  The Tribunal ignored this claim but rather took the view of that “there is nothing on the face of the renewals stamps to indicate that they are anything other than genuine” at paragraph 75.  The Tribunal provided no evidence on how it made the findings. 

10. Contrary to the Applicant’s contention, the Tribunal did take into account his evidence and claims in relation to his passport.  This issue arose at the hearing in the context of a consideration of the Applicant’s claim to the delegate that one of the reasons he could not obtain a hukou was because he had no documentation, apart from his expired passport.  In that context the Tribunal set out the evidence before the Department of a passport and two renewals, the Applicant’s evidence in relation to the circumstances in which he had sought extensions at the Chinese consulate, and his claim that he noticed that some pages had been taken out of the passport  (as set out above).  The Tribunal recorded that it asked the Applicant whether he was claiming his current passport had been fraudulently extended.  He said he did not know. 

11. The Tribunal considered this evidence (in paragraph 75 of its findings and reasons).  It was not satisfied that the Applicant would be unable to obtain documentation to enable him to restore his hukou should he be required to return to China.  Contrary to his claim to the delegate, it was not satisfied that the Applicant’s passport had expired, or if it had, that it could not be renewed. 

12. The Tribunal addressed the Applicant’s claims regarding the manner in which two renewals had been placed in the passport.  It found that his evidence in this respect lacked plausibility and that there was nothing on the face of the renewal stamps to indicate that they were anything other than genuine.  It also had regard to the Applicant’s evidence that he was uncertain whether the renewals were genuine or not.  Importantly, the Tribunal was not satisfied the Applicant had departed China illegally or that there was any evidence suggesting he had obtained foreign citizenship.

13. On this basis, having regard to country information, the Tribunal was not satisfied the Applicant would have any difficulty in restoring his previous hukou. 

14. Contrary to the contention in this ground, the Tribunal took into account the Applicant’s claims in this respect.  It was open to the Tribunal to find that the Applicant’s evidence about how the renewals were placed in his passport lacked plausibility.  It did so in the context of an adverse credibility finding that was reasonably open to it on the material before it for the reasons which it gave. 

15. Moreover the Tribunal did not simply find that the Applicant could restore his hukou on the basis of its finding about a lack of plausibility in his evidence.  The Tribunal was not satisfied that his passport could not be renewed if it had expired.  It was not satisfied that he had departed China illegally or that there was any evidence suggesting he had obtained foreign citizenship.  Its findings in this respect were reasonably open to it on the material before it. 

16. Insofar as this ground contends that there was “no evidence” in relation to the Tribunal assessment of the Applicant’s claims about renewal of his passport, to succeed on a “no evidence” ground the Applicant must show that there was no evidence at all upon which the finding could have been based  (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33). This is not such a case. The Tribunal’s findings were based on its assessment of the passport and the renewals stamps as well as the Applicant’s own evidence that he was uncertain as to whether the renewals were genuine or fraudulent. This ground is not made out.

17. In oral submissions the Applicant raised a number of issues that were unrelated to the Tribunal decision.  As I attempted to explain to him, the concern that he now raises about what he says was his detention for a week in 2002 is not the subject of the present proceedings.  Insofar as he complained generally about having been mistreated by the Department and to be very unhappy, again, that is not the subject of the present proceedings.  He also claimed that such mistreatment created mental stress for him.  However there is nothing in the material before the Court to suggest that the Applicant was unable to participate in a meaningful sense in the hearing before the Tribunal.  Nor is there anything to raise any concern about the Applicant’s ability to participate in the present proceedings.

18. The Applicant also contended generally that the Tribunal had not assessed his case based on the relevant provisions in “the migration law”.  He was unable to explain what he meant by this contention.  He seemed to suggest that whether he had lost his job or been laid off in China had not been taken into account.  He complained again about being mistreated by the Department. 

19. As the First Respondent pointed out, the visa application in issue was the Applicant’s second application for a protection visa. It was permitted on the basis of SZGIZ. No error is apparent in the Tribunal confining its consideration to the complementary protection criterion in circumstances where the Applicant had had his original 2001 protection visa application assessed on the basis of the Refugees Convention criterion.

20. Contrary to any contention that the Tribunal failed to consider the Applicant’s claims about his employment, the circumstances in which his employment in China ended and when he became aware of this, as set out above the Tribunal considered such matters, but found his evidence in that respect to be problematic having regard to inconsistencies which it described.  For reasons which it gave it was not satisfied the Applicant would be unable to find employment on return to China. 

21. The Applicant also raised an issue about his present medical condition and whether he was able to drive or “go by air”. Insofar as his contention is that he is unable to fly, again that is the not the subject of the present proceedings, but would be a matter to be raised with the Department should the Applicant, at some future time, be required to return to China. It is not relevant for the purposes of the present proceedings.

22. Similarly, the Applicant’s claims of current financial hardship are not relevant for present purposes.  Nor is his claim about not having a Medicare card.  That is not the subject of the present proceedings.  More generally, the Applicant expressed discontent with the Tribunal conclusions.  In this respect he invites impermissible merits review. 

23. As no jurisdictional error has been established on any of the bases contended for by the Applicant, his application must be dismissed. 

24. The Applicant has been unsuccessful and the Minister seeks costs in the sum of $5,800, which is less than the suggested scale applicable at the time of the review application. The Applicant told the Court that he had no job, could not afford to pay costs and still owed a hospital money for treatment in Australia. However, the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should pay the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  24 March 2017