BUZ18 v Minister for Home Affairs

[2019] FCCA 296

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 296

Catchwords:
MIGRATION – Review of Administrative Appeal Tribunal decision – visa – protection visa refusal – allegation of inadequate interpretation – where applicants seek impermissible merits review – Tribunal found Applicant was not a credible witness – inconsistent evidence before Tribunal – conclusion on credibility has cogent and rational basis – dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: BUZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1007 of 2018

Judgment of: Judge Baird

Hearing date: 29 January 2019

Date of Last Submission: 29 January 2019

Delivered at: Sydney

Delivered on: 29 January 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant:

Counsel for the 1^st Respondent:

Solicitors for the 1^st Respondent: Mr D Baddeley, Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1007 of 2018

BUZ18

Applicant

And

MINISTER FOR HOME AFFAIRS & ANOTHER

Respondent

REASONS FOR JUDGMENT

(Ex tempore, Revised from Transcript)

Introduction

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 15 March 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now the Minister for Home Affairs), made on 13 September 2017 to refuse to grant the Applicant a permanent protection (subclass XA 866) Visa. I note that the Tribunal’s decision at [1] refers to the Delegate’s decision as made at 4 December 2015. This is clearly a typographical error, and nothing turns on it.

2. By way of background, the Applicant is a male citizen of China from the Shandong province, he was born in 1968, making him 50 now.  He arrived in Australia on 27 May 2017 on a visitor subclass 600 visa.  On 10 July 2017, he applied for the Visa.  Accompanying his application was a Form 956A appointing a person by the name of ‘Xuan Zuo’ as his representative, together with a mobile telephone number and email address for the representative.

3. On 29 August 2017, the Applicant was invited to attend an interview before the Delegate on 13 September 2017; however, he failed to attend. The Delegate assessed the Applicant’s claims on the written material. On the basis of those materials, the Delegate was unable to accept his claims. The Delegate observed that notwithstanding his claims of persecution, and of his land being taken, the Applicant was able to leave China legally on his passport, holding a valid Australian Visa indicating he was of no interest to the authorities at the time of his departure.

4. On 4 October 2017, the Applicant lodged an application for merits review with the Tribunal, and provided a copy of the Delegate’s decision with his application.  As in his application for the Visa, he appointed Ms Xuan Zuo, his representative, with the same contact details.  As well as a copy of the decision record of the Delegate, the Applicant also included a copy of the notification refusing Visa.  On 19 February 2018, by email and letter to his representative, Ms Zuo, the Tribunal invited the Applicant to attend a hearing scheduled on 12 March 2018.  He attended the Tribunal hearing. 

5. A Mandarin interpreter assisted by telephone.  Ms Zuo did not attend.  The Applicant provided a copy of his Chinese passport to the Tribunal at the hearing, but supplied no further documents in support of his claim.  I note that the Tribunal record shows that the hearing took one and a quarter hours.  On 15 March 2018, the Tribunal affirmed the Delegate’s decision.  The Tribunal found the Applicant was not a credible witness and rejected his claims. 

6. The Tribunal was not satisfied that the Applicant met the refugee criterion in s.36(2)(a) and, having considered the alternative criterion in s.36(2)(aa), and the Applicant’s claims, the Tribunal also found there were no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia there is a real risk that he will suffer “significant harm” as that term is exhaustively defined in s.36(2)(a).

The Applicant’s Claims

1. In his Visa application, the Applicant set out his claims as follows (without alteration):

   I was persecuted by Chinese Government because I protest against the Government’s officials’ corruption.

   I have a cornfield in my hometown and the field of land was very good all the time. One day the local Government noticed us that our land would be collected. The compensation only have half price of the market price.

   One day when I was working, my wife called me and siad that the local Government sent people to my land to remove. They smashed all goods of land and forced us to sign the collection agreement. We were beaten by them because refused to sign it. We were very angry and have no chioce.

   My neighbour told me that we can wrote complaint letter to reveal the officials’ corruption behaviour.

   After we submitted the complaint letter to city government, they sent police to catch us. I was so scared, escape China and fled to Australia. Please protect me.

The Tribunal Decision

1. The Tribunal summarised the claims in [4] of its decision.  The Applicant’s claims lacked any detail of place, date, and identity of the land claimed taken, or the persons who he claimed took the land, and forced the Applicant to sign the collection agreement. 

2. In its decision, the Tribunal first outlined the criteria for a protection Visa and the mandatory considerations the Tribunal was to take into account, including the policy guidelines, PAM3. At [14] of its decision, the Tribunal stated that it did not find the Applicant to be a credible witness, and concluded that the decision under review should be affirmed.

3. The Tribunal set out the Applicant’s oral evidence and, at [15], described the Applicant’s evidence that he worked as a farmer and that, in 2000, his family was allocated a piece of farming land in his village by the government, that he signed a 30-year lease agreement,  and he grew crops on the farm. The Tribunal referred to the Applicant’s travel to Korea to work in a textile factory, his return to China in 2013, and working in a nearby tyre factory, he continued to farm his land. The Tribunal stated that the Applicant’s evidence also was, “His wife continues to farm the land and, currently, she is growing wheat” (at [15]).

4. At [16], the Tribunal set out the Applicant’s evidence of the county government’s decision to take possession of his land as well as other neighbouring lands, and that the Applicant refused to sign the agreement. In August 2016, seven or eight people were sent to intimidate him by destroying his crops. He was beaten, and eventually he signed the agreement.

5. The Tribunal then set out evidence about a letter of complaint, and lack of response. In response to being asked if anything else had happened, the Applicant said that a person called Mr Huang, who had also signed the letter, was arrested in September 2016. At [17], the Tribunal said that it put to the Applicant at the hearing that his evidence was that in the period between August 2016 and his departure from China in May 2017, he had continued to work and reside at the same address without experiencing any harm.

6. The Applicant stated he was hiding somewhere else, and he later added that the authorities went to his house several times, but he was not home.  The Tribunal then set out that it had put to the Applicant that earlier in the course of the hearing, that is, during his oral evidence, he had stated he had always resided at his home address in China, and he was reminded that when asked if he resided anywhere else, even for a short period of time, he had replied “no”.

7. The Tribunal then, at [17], continued by referring to the Applicant’s comment that sometimes he worked at different construction sites, and when it was put to him that he had never indicated in his application for protection Visa he had spent any period of time in hiding or away from home, he did not comment.  The Tribunal said it did not find the Applicant’s explanation satisfactory or convincing.

8. At [18] of its decision, the Tribunal said that at several times in the course of the hearing the Applicant introduced other new claims. The Tribunal identified two. First, that when at the conclusion of the hearing, the Tribunal put to the Applicant that if the local authorities or anyone else wanted to harm him they had ample opportunity to do so, the Applicant had claimed, for the first time, that two other villagers, who had signed the complaint letter, were severely beaten, and one had died. The Tribunal observed that neither in his application for Visa nor in his earlier evidence to the Tribunal had the Applicant disclosed this claim.

9. Secondly, the Tribunal identified that the Applicant’s evidence to the Tribunal indicated that his wife continued to farm the land, and that she anticipated to harvest wheat this year.  The Tribunal recorded that when the Tribunal asked the Applicant how this was possible if the county had repossessed the land in August 2016 the Applicant claimed for the first time that the government had repossessed only a part of the land.  He added that his farm was 10 acres in size and the government had repossessed only one acre. 

10. The Tribunal noted that this claim was also not included in the Applicant’s application for a protection Visa.  When it was put to him that it appeared to the Tribunal that he was changing his evidence or introducing new claims, the Tribunal recorded that the Applicant said, “Sometimes he forgets to include everything in his responses to the Tribunal’s questions”.

11. The Tribunal found the Applicant’s explanations unpersuasive, and contrived.  The shifts, and the inconsistencies in his evidence cast serious doubt on the veracity and the reliability of his claims.  At [19], the Tribunal concluded that for the above reasons it did not find the Applicant to be a credible witness.  The Tribunal said:

    For the above reasons, the Tribunal did not find the applicant to be a credible witness. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose. The Tribunal, therefore, does not accept that the applicant’s farmland or any part of it was repossessed by the County government. It follows that the Tribunal does not accept that the applicant was harassed, intimidated, beaten or harmed in any other way by the local authorities for the purpose of pressuring him to sell or transfer his rights over the land. The Tribunal does not accept that he signed a letter of complaint to the City authorities or that his co-signatories had been arrested, assaulted or killed. The Tribunal does not accept that he had made complaints or he had protested against government corruption in the past or that he would engage in such activity if he were to return to China. The Tribunal does not accept that he was in hiding for any period of time, that the authorities had visited his house or that the police were sent to ‘catch’ him.

12. At [20] through to [23], the Tribunal then concluded that it was not satisfied that the Applicant has been harmed in the past in China, or would be if he were to return to China now or in the reasonably foreseeable future, that there is a real risk that he will be harmed by reason of his race, religion, nationality, political opinion or membership of any particular social group. As I have said, the Tribunal found that the Applicant did not satisfy either the criteria set out in s.36(2)(a) or the alternative criterion set out in s.36(2)(aa) of the Act.

Grounds of Review

1. The Applicant relies, in his application for judicial review, on four grounds as follows (without alteration):

   1. AAT did not believe that I scared to go back to China because of persecution. And then AAT think that if I return to China, I will not suffer persecution by Chinese government. However, AAT did not give any persuasive reason about my case, which is not reasonable.

   2. AAT’s interpreter has an unclear translation for my case. I could not understand English, so I could not communicate with the officials. AAT did not explain the problems in my statement clearly, it caused that I did not have a fair chance to prove my true situation of being persecuted. It is AAT’s mistake.

   3. It is not reasonable that AAT doubt my credit because AAT just added a few clauses on the basis of the statement, then AAT gave me the final decesion, it was very irresponsible.

   4. AAT should do the further understanding and adjudication to my case in according with my application. However, AAT just did make decesion for my case through the refusal letter from DIBP. It is unfair for me. Even worse, I did not get the opportunity to express myself.   

Proceeding in this Court

1. The Applicant appeared unrepresented today with the benefit of a Mandarin interpreter. I would like to record my appreciation here for the assistance that the interpreter has given today.  The Minister was represented by his solicitor, Mr Baddeley.

2. At the commencement of the hearing, and before I came on the Bench, I was informed that the Minister’s solicitor provided the Applicant with the Minister’s written submissions, and those were translated to him.  At the commencement of this hearing, in response to my enquiry, the Applicant informed the Court that he did not (and also it was confirmed by Mr Baddeley) have a copy of the Court Book, the book of relevant documents from the Minister’s and Tribunal file or the supplementary Court Book which was a copy of the passport pages that had been handed to the Tribunal member during the Tribunal hearing.

3. The Court provided a clean copy of the Court Book and Supplementary Court Book. The Applicant said, through the interpreter, that he had not received the written submissions, he had not received the Court Book, and that he did not have the address shown in the application. Initially he was not able to identify whose address that was. Mr Baddeley confirmed that the Applicant had not filed any change of address. It transpired from the Applicant’s statements from the bar table that the address, or one address, was of a “Good Luck/Good Fortune” migration agent, and that he had been told by that agent to come to Court.

4. The Applicant then indicated to me that he did not know what to say, and he didn’t know anything. Upon further enquiry, I ascertained, with the assistance of Mr Baddeley, that the Applicant appeared at the first return of the proceeding before Registrar Morgan of this Court at Queen’s Square on 3 May 2018 where he was assisted by a Mandarin interpreter.

5. The Applicant also confirmed that he had appeared at the callover of this matter, again before Registrar Morgan, at Queen’s Square on 13 November 2018 when he received a copy of the hearing notice which he says he received from the other party’s lawyer, that is, from  a lawyer in Mr Baddeley’s office.  The Applicant confirmed that, on that occasion, the other party’s lawyer, namely, a lawyer from Mr Baddeley’s office, had asked him what was his email address, and he had said, “I said there [was] no change”.

6. After some questions from the Bench, I ascertained that, for more than a year, the Applicant had resided at some other location, and that he had, in fact, never resided at the address indicated on the application to this Court.  The Court provided the Applicant with a copy of the grounds of the application and those were interpreted to him.  I asked him what he wanted to say today and he said, “How do I put it?  Of course, I fear scared.  Of course, I have fear and am scared”.

7. I informed the Applicant that the role of the Court is very different to that of the Tribunal, and it is not for the Court to reconsider his claim and reach different factual findings or conclusions. I explained to the Applicant that the question before the Court is whether there were legal problems with how the Tribunal made its decision, and that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. I explained to the Applicant the consequences that would flow to him if a cost order was made against him.

8. I then asked Mr Baddeley to take me through the Court Book and, in so doing, identify the pages in which he relied, and also draw the Applicant’s attention to those parts of the Court Book.

9. Accordingly, I was taken to the application for protection Visa and the claims made by the Applicant, which I have set out above. I also note that in the Visa, the Applicant expanded on his claims that if he went to China he would be persecuted by the police, “And once I went into prison, I will suffered persecution on mental and physical”. Also, that the Chinese Government was corrupt and the government officials collude with the police and they only care for their own benefits. I was taken to the documents, the chronology of which I have set out above, and was taken through the Tribunal’s decision which I have already identified above.

10. I then asked the Applicant if he wished to say anything.  The Applicant then said that he wished to make two points and those went to some inquiries by the Tribunal at the hearing.  The first point is that when the Tribunal asked whether he lived outside his normal address for any long term, he had said “no,” and then later, when he was asked what he did for a living, he described that he worked on a construction site, and sometimes he had worked for a dozen days, staying at the construction site, then he would move on.

11. He said that in his understanding this was not living outside his normal address for a long time.  He complained that from this, the Tribunal formed the view he was not telling the truth, and this was not the case. 

12. Secondly, in relation to the land, the Applicant described that he came from a farming area in China, and the land was spread out.  He said that the land in question that was in dispute focused on one small block, and he said he still retained the majority of the land that is spread out.  He said, “It’s not like the Government obtained the whole, and then the dispute arose.”  He said that he had not before the Tribunal set out in detail that the land was spread out, and that when he had been asked by the Tribunal how come his wife was still farming, he said what he said.  He said he was fearful that on return to China he will be persecuted, and he hoped that the Court would accept and receive the appeal.  

13. In response, Mr Baddeley relied on his written submissions, and noted that in relation to the oral submissions, these were of a different character to the written grounds. 

Consideration

1. I agree with Mr Baddeley’s characterisation of the Applicant’s oral submission. In his oral submissions, the Applicant invites the Court to engage in merits review. This Court cannot engage in a merits review. The only evidence before the Court is the Tribunal’s record of its decision, and the only evidence before the Tribunal was the Applicant’s passport, the Applicant’s protection Visa application and the Delegate’s decision.

2. There is before me no transcript, and I note that I have confirmed with the Applicant that he both attended on the first directions hearing and that he was provided with a copy of the directions that were made (which provided that the Applicant was to file and serve any evidence he relied on, including transcript in accordance with a timetable).  Whether or not he took those directions away with him, he confirmed, and I accept, that he had the benefit of a Mandarin interpreter. 

1. It is for the Applicant, as any applicant, to provide evidence and arguments to the Tribunal, and to so enable the Tribunal to reach the requisite satisfaction it must reach under the Act.  The Tribunal is not required to make an Applicant’s case for him, and, on this basis, the oral grounds advanced today must be rejected.  This is not the occasion for a merits review, and I do not find any jurisdictional error in the matters put to this Court.

2. In the Applicant’s affidavit, accompanying the application to this Court, the Applicant attaches a copy of the Tribunal decision and otherwise says, and I quote: “I fear to return to China.” The Applicant otherwise confirms that he lodged the application in person and gives his date, location of birth and country of birth.

Ground 1

1. Turning then to the written grounds of review, as to ground 1, the Applicant complains that the Tribunal did not believe the Applicant’s claims to fear persecution in China, and failed to give persuasive reason about the Applicant’s case, which was not reasonable.  As the Minister says in his submissions, the Tribunal was not under any obligation to uncritically accept any, and all, allegations or claims made by the Applicant.  As I have already said, it is for the Applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to each the requisite state of satisfaction.

2. Unreasonableness is not established merely because the materials provided by the Applicant, such as they are, fail to satisfy the Tribunal that the Applicant met the applicable criteria for Visa.  I consider, on the limited evidence before it, the Tribunal’s findings were open on the materials before it, and for the reasons that it gave.  Its decision does not, in terms of the test for unreasonableness, lack an “evident and intelligible justification.” 

3. The shifting and changing nature of the Applicant’s oral evidence at the hearing, and its differences from the claims made in the protection Visa, provide an evident and intelligible basis on which to grant the Tribunal’s conclusions.  I dismiss ground 1.

Ground 2

1. Turning to ground 2, the Applicant contends the Tribunal’s “interpreter was an unclear translation of my case” that he did not understand English, “could not communicate with the officials” and he also asserts that the Tribunal did not explain his problems in his statement clearly, and he did not have a fair chance to prove his situation. As I have noted, the Tribunal decision record indicates that the hearing was conducted with an interpreter in Mandarin and English languages. The Applicant has not filed any evidence, such as a transcript of the hearing, to support the generalised contentions. The oral submissions today do not identify that there was any unclear translation. Rather, the Applicant says that there were reasons for his saying what he said.

2. The question of whether inadequate interpretation has deprived an Applicant of the opportunity given by s.425 of the Act, as the authorities say, involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole.  The question is whether any errors in interpretation are of such a character, viewed individually or in aggregate, that the process mandated by s.425 of the Act miscarried.  This involves focusing on the relationship between the alleged mistranslations or non-translations, and the quality or fairness of the process.  In the present case given that there is no supporting evidence, the complaints in ground 2 cannot succeed. Furthermore, the evidence I do have is that the hearing took over an hour, and on the limited extent of the evidence, I find that the complaints in ground 2 cannot succeed, and that the Applicant’s assertion that the Tribunal decision was a mistake, has no proper basis.  I dismiss ground 2.

   Ground 3

3. Ground 3 is a contention as to credit.  As the Minister submits, when determining whether an Applicant has a well-founded fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence, and consider the inherent improbability of events.  I have noted above that the Tribunal found that the Applicant was not a credible witness, and that it did so on the basis of identified inconsistencies in his claims, and the changing and evolving nature in the way in which he presented his oral evidence. 

4. Whilst it is not always the case that credibility is only a matter for the Tribunal, in the present case, given the identification of the differences and inconsistencies in the evidence, and the change in the nature and character of the claims, as recorded in the Tribunal’s decision, I find that the decision of the Tribunal as to the credibility of the Applicant was open on the materials before it, and for the reasons that the Tribunal gave.

5. The Applicant’s propensity to tailor his evidence to achieve his own purposes, is clear from paragraphs that I have referred to in the Tribunal’s decision above, and, in particular, [17] and [18]. There were two new claims that were introduced orally, and appear, on the face of the Tribunal record, to have been introduced to overcome problems the Tribunal identified in his evidence. In particular, the claim as to the possession of his farmlands took on a different colour, and became very different from the claim in his protection Visa which claim apparently was maintained at the commencement of his oral hearing.

6. I find that the Tribunal reached its conclusion on credibility on material that provided a cogent and rational basis for the Tribunal to so find that the key claims lacked credibility.  The claims flowing from those key claims follow from that finding of credibility.  As I have set out, those are contained in [19] of the decision.

7. The Applicant’s contentions in ground 3 take issue with the Tribunal’s factual findings and, in substance, as with the Applicant’s oral submissions, constitute an invitation to this Court to engage in impermissible merits review.  I dismiss ground 3.

   Ground 4

8. Ground 4 as I understand it, appears to be that the Tribunal made its decision without understanding, and adjudicating on the Applicant’s case, and that it did so through the Delegate’s decision. The Applicant contends that this is unfair, and that he did not get the opportunity to express himself. To the contrary, the hearing record shows that the Applicant had the opportunity to present oral arguments and evidence, and that the Applicant took that opportunity before the Tribunal. I note that a Tribunal hearing is an opportunity for an Applicant to expand on his claim and to provide explanation, and, where appropriate, further evidence.

9. It is apparent from the record of the time taken in the hearing, and from the Tribunal’s decision, in particular, to the extent the Tribunal sets out the evidence that the Applicant gave in [15], [16], [17], and [18] of its decision, that the Applicant both presented his case, and that the Tribunal considered it, and engaged with the Applicant’s case, and the Applicant’s claims.  It is not apparent that the Tribunal misunderstood the case the Applicant was advancing or that the Tribunal incorrectly applied the relevant statutory test or asked itself the wrong question.

10. The Tribunal engaged with the Applicant’s claims and evidence, and applied its own consideration to the material.  In particular, it did not simply base its decision on the Delegate’s refusal decision.  The Applicant was provided with, and took up, a real and meaningful opportunity to respond to the Tribunal’s concerns about his evidence, and the dispositive issues arising on the review.

11. The Tribunal’s findings about the Applicant’s claims I find flowed logically from its reasons and its findings on its evidence, and they had a cogent basis, I dismiss ground 4.

Conclusion

1. It follows that the Applicant has not made out his grounds of review. I dismiss the application with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date:  12 February 2019