BVP18 v Minister for Home Affairs

[2019] FCCA 998

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVP18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 998

Catchwords:
MIGRATION – Application for judicial review of an Administrative Appeals Tribunal decision – Applicant claims to fear harm in China due to sheltering Falun Gong colleague – Tribunal did not accept Applicant’s claims as credible – whether Tribunal denied procedural fairness – whether Tribunal refused application without reasonable evidence – whether the Tribunal was biased – whether Tribunal considered irrelevant facts – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 476

Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

WZAVW v The Minister for Immigration and Border Protection (2016) FCA 760

Applicant: BVP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1016 of 2018

Judgment of: Judge Baird

Hearing date: 1 April 2019

Date of Last Submission: 1 April 2019

Delivered at: Sydney

Delivered on: 1 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr M Gao, Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent's costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1016 of 2018

BVP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL 

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 22 March 2018 affirming a decision of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minster for Immigration and Border Protection), made 24 August 2015 to refuse to grant the Applicant a protection (Class XA) Visa. 

Background

1. The Applicant was born in 1969 in Hebei Province, and is a male citizen of China.  He appears to have first arrived in Australia for a business visit on 25 June 2013 on an FA600 visitor visa, valid until 11 November 2013.  He went to New Zealand on 26 June 2013 and returned to Australia on 27 June 2013, before departing Australia on 30 June 2013 for a visit to East Timor.  In his application, he says he departed from East Timor on 2 July 2013 and he appears to have then returned to China.  According to his application for Visa, he entered Australia again on 11 August 2013.  It appears that he re-entered Australia on 11 August 2013 on the same visitor visa that he held in 25 June 2013, and he has since remained in Australia. 

2. On 3 December 2014, the Applicant applied for the Visa.  The Applicant claimed to fear harm in China on the basis that he provided refuge to a former colleague, whom I will call ‘Mr L’, who is a Falun Gong practitioner persecuted by the Chinese Government.  The Applicant claimed that Mr L stayed at his home in May 2013 for 3 days which resulted in the Applicant being questioned and beaten by the police in July 2013.  The Applicant further claimed that, after he left China, the police, in October 2013, arrested his wife who confessed under coercion that they assisted Mr L. 

3. The Applicant appeared at an interview before the Delegate on 12 August 2015.  On 24 August 2015, the Delegate refused to grant the Visa on the basis the Delegate was not satisfied that the Applicant's claims were credible. 

4. On 17 September 2015, the Applicant applied to the Tribunal for review of the Delegate's decision.  The Applicant was invited to appear at a hearing before the Tribunal, and did so on 28 February 2018, assisted by a Mandarin-speaking interpreter by telephone. 

5. After the hearing, on the same day, 28 February 2018, the Tribunal wrote to the Applicant, inviting him to comment on, or respond to, information as set out in that letter, about when the Applicant last spoke to Mr L, as was recorded at the interview that occurred between the Delegate and the Applicant.  I note I do not consider it material that the date of the interview is there recorded as 13 August 2015 whilst the Delegate's decision records the interview date as 12 August 2015.  The letter also referred to questions and answer between the Delegate and the Applicant about when the Applicant said he was detained by the police, and also referred to the movement records about the Applicant's arrival and departure dates in Australia, and put to him that the delay in applying for a protection visa of over a year is inconsistent with the alleged fear the Applicant claims.  The Applicant was invited to give comments or respond to the information in writing by 14 March 2018.  The Applicant did not provide a response to that letter.

6. This letter was sent in accordance with the Tribunal's obligations under s.424A of the Act. I note that the letter was sent by email to the email address which the Applicant, by email on 21 December 2017, had informed the Department of Immigration and Border Protection was his current email address.  This email address was again confirmed by the Applicant as his current email address on the information from unrepresented applicants form provided to the Court and to the Minister at the directions hearing before the Registrar of this Court on 3 May 2018.   

The Applicant’s claims

1. I set out the following claims made by the Applicant, taken from the Delegate's decision at [8], with additional matters, each of which I have confirmed with the Applicant today are accurate: 

   (a) in May 2013 a friend, Mr L, asked to stay with the Applicant for a few days.  Mr L said he was on the run as a Falun Gong practitioner, and he left after three days.  Mr L told the Applicant that he went into hiding after he ran into some security guards while he and another practitioner distributed Falun Gong leaflets in a residential area on a late night.  (I take this explanation from the statement of claims in the Applicant's Visa application.)  The Applicant lent Mr L $2000 yuan when he left the Applicant's home; 

   (b)on the night of 12 July2013, police suddenly came to his home.  They searched the Applicant's home and took him to the police station.  The police pointed to a photo of Mr L and asked the Applicant if he knew him.  The Applicant said, "Yes," but said he had not seen Mr L recently; 

   (c)police abused and beat the Applicant and also detained him for 24 hours.  The Applicant's wife was also questioned at home.  They both insisted that they had not seen Mr L;

   (d)after this incident, the Applicant felt angry and frightened.  He was afraid that one day he would be involved and punished by the government for harbouring a Falun Gong practitioner.  So he used his tourist visa to flee to Australia;

   (e)in October 2013, the police suddenly arrested the Applicant's wife, took her to the police station, and coerced her to confess that they had harboured a Falun Gong practitioner.  The police threatened not to release her until she confessed.  The police told her to try and get the Applicant back to China, as the Applicant put it, as soon as possible for investigation.  The Applicant says that he got very scared.  He dare not go back to China because he will be caught and punished once he returns to China. 

2. The Applicant further elaborated on his claims at the Delegate's interview, and at the Tribunal hearing.  At the Applicant's interview, as recorded in the Delegate's decision, the following additional matters were provided by the Applicant.  I refer to these additional matters by reference to the item numbers set out in [8] of the Delegate's decision: 

   [3] in Australia, the Applicant lived with the financial support of a friend named G, a Falun Gong practitioner; 

   [5] the Applicant returned to China before his trip; 

   [6]the Applicant spoke with Mr L by mobile phone for several weeks; 

   [8] the Applicant spoke to Mr L several times after his return (to China) when the police [when the Applicant was detained] asked about the phone calls but did not refer to the location of Mr L’s calls; 

   [15] when asked why his wife was arrested in October, he said that the police suspected that the Applicant practiced Falun Gong.

The Tribunal’s decision

1. As I have said, the Applicant appeared at a hearing before the Tribunal on 28 February 2018, and was assisted by an interpreter in the Mandarin language.  On 22 March 2018, the Tribunal affirmed the decision under review. 

2. The Tribunal noted the Applicant's claims for protection at [3], setting out the statement of the Applicant made in his Visa application, his oral evidence given at the Tribunal hearing, and the content of the s.424A letter through [3] to [14]. At [15], the Tribunal noted that the Applicant failed to respond to the s.424A letter. At [16], the Tribunal referred to DFAT country information report on China of 21 December 2017, and the Chinese Government's position on Falun Gong.

3. After setting out the relevant law, and the s.499 ministerial direction from [32] through to [41], the Tribunal considered the Applicant’s claims and the evidence.  The Tribunal found that the Applicant had given inconsistent evidence in relation to 4 matters, which characterisations I have taken from the Minister's submissions, which 4 matters I put to the Applicant, and he confirmed that they were what had been said, as follows.

   (1)   The last time the Applicant had spoken to Mr L

4. The Tribunal set out the evidence that the Applicant gave in relation to the last time he had spoken to Mr L (at [9]) as follows: 

   [9] The Tribunal put to the applicant that his application stated that [Mr L] came to his house and not [Mr L]. He stated that must be an error. The applicant stated the last time he talked to [Mr L] was about May/June when he was at his place which was before the applicant's first trip to Australia. The Tribunal put to the applicant that he told the Department at interview that he talked to [Mr L] in about June/July before he was detained by the police and after the applicant returned from Australia to China. He denied that and stated he was afraid to contact him.

   (2)   The events that led to Mr L being pursued by the police

5. The Tribunal stated:

   [10]The applicant stated [Mr L] had stated he was responsible for recruiting new people into Falungong and was being pursued by the police because other practitioners had told them he was a Falungong leader. The Tribunal put to him that in his written statement he said [Mr L] said he was wanted because he and another practitioner distributed Falungong leaflets in a residential area. He stated that was true but could not remember the details. The Tribunal put to him that Falungong had unlawful for a very long time and wondered why [Mr L] would distribute leaflets for an unlawful organisation. He stated he did it in secret but that he had never asked why.

   (3)The Applicant's interaction with the police, including whether the police had ever detained him

   (4)Whether the Applicant was in China or Australia when his wife was detained

6. The Applicant’s evidence and the Tribunal’s questioning on these two matters were set out in the tribunal’s decision at [11]:

   [11]The applicant stated the police did not talk to the applicant because he got away before they detained him. He stated after he returned to China he learned that his wife had already been detained and he was extremely fearful and organised his trip away and he was never detained by police. The Tribunal put to him that in his statement he said on 12 July the police came to his home and took him to the police station for 24 hours. He stated that was his wife. The Tribunal put to him that on 13 August 2015 the Department had asked him if the police asked him if he was a Falungong practitioner and he initially told them that the police did not ask because they knew he did not practice but then said the police did not know. The Tribunal put to him that it may find that at that interview he told the Department that the police found and talked to him but he had just stated that the police never found him. He stated he told the Department that his boss had a good relationship with the police and he was informed in advance.

7. The Tribunal found that the Applicant had given inconsistent evidence, setting out its concerns about the veracity of the Applicant's responses and his evidence at [35] as follows: 

   [35] However, the Tribunal has concerns about the veracity of the applicant's responses and his evidence. Firstly, the Tribunal finds that the applicant's evidence in relation to these events has changed over time, that is in his statement the applicant stated that [Mr L] distributed Falungong leaflets and ran into a security guard so went into hiding but at hearing, the applicant initially stated that [Mr L] was being pursued by police because other practitioners had told them he was a Falun Gong leader. In addition, at Departmental interview on 13 August 2015 the Tribunal finds that the applicant stated that for about four or five weeks he was phoning [Mr L] after [Mr L] left the applicant's house and that the last time he spoke to him was just after the applicant returned to China but his evidence at hearing was that the last time he talked to [Mr L] was about May/June 2013 when he stayed at his house. In addition, at that interview the Tribunal finds that the applicant told the Department that he had had a conversation with the police about phone calls to [Mr L] and the police asked him about Falun Gong. The Tribunal finds these comments as well as the applicant's written statement are inconsistent with the applicant's statement at hearing that he never spoke to the police and was never detained by them. In addition, the Tribunal finds the applicant gave inconsistent evidence at hearing about whether he was in China or Australia when his wife was allegedly detained.

8. The Tribunal further noted that the Applicant did not apply for a protection Visa for over a year after his visa had ceased.  It found that this was not consistent with his claim that he fled China because he feared persecution (see at [14] and [37]).

9. The Tribunal found that the Applicant was not a credible witness, and it rejected his claims cumulatively.  The Tribunal did not find that the Applicant was reliable, and did not accept that his evidence was based on actual experiences, and considered that it had been fabricated to create a protection claim.  At [38] the Tribunal stated as follows:

   [38]As a result, the Tribunal does not accept that [Mr L] was a Falun gong member who distributed leaflets or ran from guards, or that Falun gong practitioners informed on him, or that he hid at the applicant's home. Neither does the Tribunal accept that either [Mr L], the applicant or his wife were detained or sentenced by police, nor that the applicant was abused and beaten by police. Given this, the Tribunal does not accept there is a real risk that the applicant has been linked to or has been imputed with an actual or imputed connection to [Mr L] or Falungong or anti-government opinion for any other related or other reason.

10. Accordingly, the Tribunal found that the Applicant did not satisfy the refugee criterion or the complementary protection criterion under s.36(2)(a) and s.36(2)(aa), respectively, in the Act.  It affirmed the decision not to grant the Applicant a protection Visa.

Application and grounds of review

1. By application to this Court made 12 April 2018, the Applicant seeks judicial review.  The grounds of review that the Applicant relies on are as follows, (without alteration): 

   There exists unfairness.

   1. The Tribunal refused my application without reasonable evidence.

   2. The Tribunal considered my application with bias.

   The Tribunal considered irrelevant facts against me.

   Therefore, jurisdictional errors were made.

2. The Applicant filed an affidavit with his application attaching the decision record of the Tribunal, and affirming to the following two paragraphs: 

   1. Due to shielding Falun Gong practitioner, I was investigated by the police.

   2. I feared to be caught and punished by the police.

Proceedings before the Court

1. The Applicant attended a first Court date before a Registrar of this Court on 3 May 2018, and, by consent, agreed to a timetable permitting an amended application and further affidavit and requiring written submissions.  None of these were provided by the Applicant. 

2. Before me today, the Applicant appears unrepresented, but with the assistance of a Mandarin interpreter.  The Applicant confirmed that he wished to proceed on the application, and that he relied on the affidavit filed with the application.  He was provided with a copy of the bundle of relevant documents and supplementary bundle of relevant documents prepared on behalf of the Minister which was admitted as exhibit 1.  He confirmed that he had received, and had previously had read and translated to him the Minister's submissions. 

3. The Court informed him of the cost consequences of an adverse decision by the Court, and that the role of the Court was to consider whether there were what I describe as “legal problems” in the decision of the Tribunal, and that this Court had no power to interfere with the decision of the Tribunal unless it is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction.  In response to my inquiries whether he wished to proceed, the Applicant indicated he wished to proceed, and said to the effect that, "they don't trust me and they don't have any reasonable evidence." 

Applicant’s submissions

1. I invited the Applicant to make submissions.  And, after being pressed, he said that, after his application was rejected, he was still hoping to get protection.  If he went back, there would be trouble because contacting Falun Gong practitioners is not permitted and he had lent them money.  I asked the Applicant why he said that the Tribunal's decision was unfair, and he said that they did not ask him to provide proper evidence. 

2. I confirmed with the Applicant that what I have set out above, expanding on the Minister's submissions (being the 4 matters I set out at [12]-[14] above) was correct, to which the Applicant said, “yes”, he accepted that that was what was put, but as to the references to time, he could not remember clearly. He confirmed that [12] and [13] of the Tribunal decision were all true. In relation to the s.424A letter, he said he could not remember the letter.

3. He said he moved house many times.  He agreed he did not tell the Department of any times that he moved.  He said he had given his opinion.  He had nothing more to say. 

Minister’s submissions

1. Mr Gao appeared for the Minister and took the Court through certain matters in the Delegate's decision, including the travel movements of the Applicant, and the matters that I have set out above. In relation to the Applicant's explanation regarding the s.424A letter, Mr Gao submitted that the letter was sent to the current email address of the Applicant, both as set out on his application, and confirmed with the Minister, and with the Court on the first Court date, as I have noted.

Consideration and Evidence

1. I observe that the grounds of review are unparticularised, and as urged by Mr Gao, and by reference to WZAVW v The Minister for Immigration and Border Protection [2016] FCA 760 at [35], that where, as here, the ground is an unparticularised assertion of jurisdictional error, is vague and meaningless, and does not specify what the nature of the jurisdictional error allegedly committed by the Tribunal was, as stated by Gilmour J: “failure to particularise a ground of review is sufficient basis for it to be dismissed”.

1. However, it is appropriate to address what may be able to be understood as the grounds or complaints of the Applicant. 

First ground

1. First, as to the purported unfairness, this could be understood as an assertion that the Tribunal did not afford the Applicant procedural fairness. That ground must be rejected. The Applicant was invited to attend a hearing before the Tribunal pursuant to s.425 of the Act, which he attended. At the hearing he gave evidence and he presented arguments. The Tribunal, in accordance with its procedural fairness obligations, invited the Applicant to comment on information that it considered could be the reason, or part of the reason, for affirming the decision under review, pursuant to s.424A of the Act.

2. I have referred above to the Tribunal's letter dated 28 February 2018, the substance of which is also set out at [14] of the Tribunal's decision.  I find that the Tribunal has complied with its procedural fairness obligations in the conduct of its review.

Second ground

1. Insofar as the ground numbered “1” in the application: "the Tribunal refused my application without reasonable evidence", may be understood as an assertion that there was no evidence for the Tribunal to reach its conclusion that the Applicant was not a credible witness.  However, the Tribunal noted the inconsistencies in the Applicant's evidence, as I have set out above, and it gave cogent reasons for reaching its adverse credibility findings.  The Tribunal set out, and put to the Applicant, these inconsistencies, as I have said, in relation to the following 4 matters:

   (1) the last time the Applicant had spoken to Mr L;

   (2) the Applicant’s interaction with the police, including whether the police had ever detained him;

   (3) the events led to Mr L being pursued by the police; and

   (4) whether the Applicant was in China or Australia when his wife was detained. 

   I refer to what I have set out above at [12] to [15].  In these circumstances, I find it was open to the Tribunal to reach its adverse credibility findings, and I find that it did not fail to afford the Applicant procedural fairness (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [36] to [44]). This ground, beneficially construed, must be rejected. It is unfounded.

Third ground

1. As to the next assertion, numbered “2”, "The Tribunal considered my application with bias", any assertion of bias must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 69). The Applicant has not proffered any explanation or evidence as to why he says the Tribunal might be biased. The Tribunal fairly set out the evidence the Applicant gave and the inconsistencies it found. It put those inconsistencies to the Applicant and gave him an opportunity to respond.

2. There is, I find, no evidence before this Court to suggest that the Tribunal was so committed to a conclusion it had already formed as to be incapable of bringing an open mind to the matters before it or of being incapable of persuasion, whatever the evidence or argument that might have been presented.  That the Tribunal was not satisfied that the Applicant was a credible witness due to the glaring inconsistencies in his evidence, does not give rise, in the present case, to bias.  This ground must be rejected.

Fourth Ground

1. As to the unnumbered, third point, "the Tribunal considered irrelevant facts against me," no such irrelevant facts have been identified.  None is apparent from the Tribunal's decision.  If they are inconsistent facts, then those inconsistencies and an assessment of credit is a matter for the Tribunal to identify, and is within the Tribunal's task to consider. 

Other matters

1. As to the matters raised in the Applicant's affidavit, they merely restate matters that the Applicant had put to the Tribunal, and that were contained in his protection claims.  To the extent that that affidavit may be seen as an invitation to the Court to undertake merits review, that is not the role of this Court and it is impermissible to so undertake such a review. 

Oral submissions

1. Turning to the oral submissions that the Applicant made today, to the extent that it might be suggested by the Applicant that Australia owed the Applicant protection due to a perceived political opinion as a Falun Gong practitioner, or as having harboured Falun Gong practitioners, the Tribunal, having rejected the Applicant's claim and credibility comprehensively, did not have to proceed to consider whether the Applicant held a Falun Gong opinion, and, for any such reason, raised either refugee claims or complementary protection claims. 

2. As to the Applicant's submission that he could not remember clearly about the chronological errors, this submission was also put to the Tribunal, and is recorded in the decision at [13]. There is no medical evidence before the Tribunal to suggest that the Applicant had any difficulties of a medical or mental health nature, of a lack of recollection, or problems with dates, and there is nothing before this Court to suggest that there was any reason for the Applicant’s lack of recollection of dates other than as found by the Tribunal.

3. Finally, as to the question that the Tribunal relied on, as part of its reason, the Applicant's delay in making a protection claim, in the circumstances where the Applicant had lived with a Falun Gong practitioner in Australia when he first came to Australia, and a Falun Gong practitioner was available to provide him assistance, the Tribunal is entitled to take the delay in applying for the Visa into account, and to consider that the delay of more than one and a half years after his visitor visa ceased, was not consistent with the Applicant's claims that he fled China because he feared persecution. 

4. For the reasons I have expanded upon already, I conclude that the grounds of application should be rejected. 

Conclusion

1. The application should be dismissed and it follows that the Minister is entitled to his costs.  I will so order.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:         12 April 2019