Bwe15 v Minister for Immigration

[2017] FCCA 999

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWE15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 999

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal erred in whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424AA, 474

Cases Cited:
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: BWE15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2508 of 2015

Judgment of: Judge Emmett

Hearing date: 16 May 2017

Date of Last Submission: 16 May 2017

Delivered at: Sydney

Delivered on: 16 May 2017

REPRESENTATION

The applicant appeared in person with a Mandarin interpreter

Solicitors for the Respondents: Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2508 of 2015

BWE15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 11 August 2015 (“the Tribunal”).

2. The background of this matter, the applicant’s claims for protection and the Tribunal’s decision record are accurately summarised in the written submissions of the first respondent, as follows:

   “2 The applicant is a citizen of the People’s Republic of China (China) (Court Book (CB) 12). On 14 June 0213, he lodged an application for a protection visa (CB 1). On 6 December 2013, a delegate of the first respondent refused the grant of a protection visa (CB 43).

   3 On 7 January 2014, the applicant lodged with the Tribunal an application for review of the delegate’s decision (DIBP folio p.56). On 19 May 2014, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments, with the assistance of a Mandarin interpreter (CB 67). On 11 August 2015, the Tribunal affirmed the decision under review (CB 82).

   4 On 11 September 2015, the applicant filed an application to show cause in this honourable Court.

   Applicant’s claims for protection

   5 In a statement included with his protection visa application (CB 27-28), the applicant advanced the following claims:

   5.1 The applicant’s mother was a Christian and was involved in underground church activities. The Chinese authorities treated underground church Christians in an inhuman way and security officials were authorised to punish them.

   5.2 One day in 2010, the local Public Security carried out a raid on a meeting, which the applicant’s mother was attending. The policemen violently broke in and prevented the attendees from escaping “by using electric batons and other weapons”. A friend of the applicant’s mother escaped and ran to the applicant’s home to tell him what was going on. When the applicant arrived at the scene, he saw a policeman beating his mother with an electric baton, whilst his mother had blood all over her face. The applicant became extremely mad, grabbed a brick on the ground and hit the policeman with it.

   5.3 The applicant was taken to the police station and tortured. His finger was injured and he finally lost the finger as a result. After he was released from the detention centre, the local policemen would not let him go. They told him he would regret he was born. There was no chance for him to survive in his country so he came to Australia in 2013.

   Tribunal decision

   6 As a preliminary matter, the Tribunal recorded its exchanges with the applicant regarding his failure to attend the interview with the delegate. In summary, the applicant contended that he had not received the delegate’s invitation, and only understood the Tribunal’s invitation to the hearing because his neighbour and friend, “Kevin”, translated the Tribunal’s letter for him.

   7 In oral evidence before the Tribunal, the applicant essentially reiterated, with some variation, in the contents of his written statement concerning the incident in 2010 (CB 88-90 at [57]-[81]). Materially, he said that the police were equipped with “rubber rods, not electric” and that during the raid, a young “lad” escaped and came to the applicant’s workplace to inform him that his mother had been assaulted and injured (CB 88 at [57]-[59]). Further, he claimed that when he arrived at the scene, he hit the policeman with a wooden stick (CB 88-89 [60]). The applicant confirmed that he did not fear any serious harm as a result of his religion (CB 90 at [78]). The applicant also stated that, shortly after his arrival in Australia, he contacted his family who told him that they had been scared and intimidated. However, he added that more recently, the family said that everything was “okay” but that he was not sure whether they were hiding things from him (CB 90 at [80]-[81]).

   8 The Tribunal recorded that it had put to the applicant a number of concerns pursuant to s.424AA of the Migration Act 1958 (Cth) (Act) (CB 91 at [86]), and in particular the following:

   8.1 At the hearing, the applicant said that a “lad” ran to his workplace to inform him that his mother had been assaulted, whereas in his written statement, he had said that a friend of his mother had run to his home to do so. The Tribunal identified the inconsistency as being between the “lad” and “a friend of the applicant’s mother”, considering the two to be distinct. The Tribunal found that the applicant had not “discarded” his written statement and that the inconsistency could not be explained by the fact that the statement was a translation of the original Chinese version (CB 91-92 at [89]-[96]). The Tribunal did not accept the applicant’s response that the events were a long time ago and that “things like this have become really vague”. It found his evidence on this issue to lack credibility (CB 91-92 at [92] & [96]).

   8.2 At the hearing, the applicant said that he hit the policeman with a wooden stick, whereas in his written statement, he said that he had used a brick. In response, the applicant queried whether this was a translation issue and said that he used a stick. The Tribunal rejected this explanation (CB 92 at [97]-[105]), noting that the applicant was now claiming that Kevin had translated his written statement, whereas earlier in the hearing, he had suggested that Kevin got someone else to translate it (CB 92 at [103]-[104]).

   8.3 At the hearing, the applicant said that the police had rubber rods, which were not electric, whereas in his written statement, he said that they had electric batons (CB 92-93 at [106]-[115]). The Tribunal rejected the applicant’s response that he did not have proper knowledge of police equipment, finding his evidence on this to be unreliable (CB 93 at [109], [115]).

   8.4 The Tribunal noted that the incident involving the assault took place in 2010, whereas the applicant did not arrive in Australia until April 2013. The Tribunal considered that if the applicant really feared persecution, he would have left at the first moment. It rejected the applicant’s explanation that he was waiting for his children to grow a bit older and that he wished to build up “some of his defence” (CB 93-94 at [116]-[120]).

   8.5 The Tribunal found it difficult to accept that the applicant did not know Kevin’s full name, having regard to the reliance that the applicant placed on Kevin, and found that this undermined the applicant’s credibility (CB 94 at [121]-[130]).

   8.6 Finally, the Tribunal found the applicant’s inconsistent evidence on the length of his residence in Lakemba (“two months, maybe more” versus “one month”) to further undermine his credibility (CB 94-95 at [131]-[141]).

   9 The Tribunal concluded that the applicant’s evidence was not credible. It referred to the PAM3 guidelines concerning the effects of trauma on asylum seekers’ recollection, but noted that the applicant’s evidence was in the most part, self-contradictory (CB 96 at [147]). Further, the Tribunal did not accept that the translation of the original Chinese version of the applicant’s written statement was as “inconsistent” with the English version as the applicant had argued. The Tribunal rejected as not credible the applicant’s claims regarding the 2010 incident (CB 96 at [149]). The Tribunal considered the applicant’s injured finger, noting that his evidence was unclear on this point. The Tribunal concluded that the applicant did not suffer the injury at the hands of the police (CB 96 at [150]-[153]).

   10 Overall, and on the basis of its adverse credit findings, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution (CB 97 at [154]). It proceeded to also find, on the basis of its credibility findings, that the applicant did not satisfy the complementary protection criterion (CB 97-98 at [157]-[166]).”

The proceeding before this Court

1. The applicant attended a directions hearing before a Registrar of this Court on 22 October 2015. On that occasion the applicant was given leave to file and serve an Amended Application, together with any further evidence and submissions in support.  The matter was set down for hearing today.

2. At the directions hearing, the applicant was provided with the contact details of legal services providers, and translating and interpreting services in documents headed in the applicant's own language. 

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

4. I explained to the applicant that the role of this court was very different to that of the Tribunal and that the only issue before this court was whether or not the decision of the Tribunal was made according to law, or whether the Tribunal's decision was affected by a mistake that goes to its jurisdiction.  I explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake and that, in the absence of any jurisdictional error, this court has no power to interfere with the Tribunal's decision. 

5. The applicant confirmed that he had not filed any documents either in accordance with the Court’s directions or otherwise.

6. The applicant confirmed that he relied on the single ground of his initiating application filed on 11 September 2015. That ground is as follows:

   “The Tribunal did not believe anything I provided. It is not fair to me. The Tribunal pointed out that the evidence I provided was really vague. However, people cannot remember everything exactly. This is human natural.”

7. The applicant's ground was interpreted for him and the applicant was invited to say whatever he wished in support. 

8. The applicant responded that the Tribunal hearing had lasted two hours, which had been too long and that had caused him not to be able to remember details. The applicant further stated that as a result he became confused and this was unfair to him.  The applicant gave no further detail or elaboration of those assertions, however he confirmed that if he was given an opportunity to give evidence, that is the evidence that he would give.

9. In the circumstances, the solicitor for the first respondent, Mr Andrew Keevers, accepted that would be the evidence and did not seek to require the applicant to give that evidence formally or be subjected to cross-examination. 

10. In the circumstances, I accept the applicant's bare assertion that he became confused at the hearing and that is why the hearing was unfair to him. The applicant had been directed to file and serve any evidence by 3 December 2015 in support of his application. There is no other evidence before this Court of any confusion caused to the applicant at the hearing. 

11. As stated above, the applicant confirmed that no evidence had been filed. The directions of the Court specifically referred to the filing of any recording of the Tribunal hearing or the filing of any transcript, neither of which was taken up by the applicant.  In the circumstances, I accept as accurate the Tribunal's decision record as reflecting the matters discussed with the applicant at the hearing (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

12. The decision record does not disclose any complaint made by the applicant about the length of the hearing or that the length of the hearing was causing him to be confused about various details.  The Tribunal’s decision record makes clear that the Tribunal explored the applicant's claims with him at the hearing and put to him matters of concern that it had about his evidence and noted the applicant's responses. 

13. The Tribunal purported to put some of its concerns to the applicant in accordance with s.424AA of the Act. Ultimately, the Tribunal rejected the applicant's claims of past harm as not credible. The Tribunal noted various explanations given by the applicant in relation to the vagueness of his evidence and which it raised with him at the hearing.

14. The Tribunal noted the applicant's response that he could only give an approximate description and if he had to go deep into his brain for details, it would cause him headaches.  Ultimately, the Tribunal found that the concerns it had about the applicant's evidence could not be explained by the applicant. The Tribunal generally found the applicant's evidence to be unreliable, inconsistent, vague and not credible. 

15. In relation to the inconsistencies between the applicant’s evidence before the Tribunal and his claims for protection, the Tribunal noted that the applicant said that he had made his statement for protection and that somebody had translated it. The Tribunal further noted that it had asked the applicant as to the identity of the translator, and the applicant had responded that he just wrote something, and gave it to “Kevin” who approached someone for a translation and that he had given “Kevin” the translation fee.  The Tribunal found those comments to be implausible and that the applicant had embellished his story by indicating that “Kevin” was the translator. 

16. There is nothing in the Tribunal’s decision record, as stated above, that suggests that the applicant made any complaint about the time of the hearing and there is no evidence before the Court to suggest that there was any complaint made post-hearing about the time or conduct of the hearing. In the circumstances, the applicant's complaint this morning that the hearing lasted too long and that he could not remember details, and got confused and that was unfair to him, is not capable of establishing jurisdictional error on the part of the Tribunal. 

17. In relation to the ground in the applicant's initiating application, it is wholly unparticularised, either in writing or orally, and is unsupported by any evidence. The ground simply contains bare assertions that, by themselves, are not capable of establishing jurisdictional error.

18. From the Tribunal's decision record, it is apparent that information that the Tribunal considered may be the reason, or a part of the reason, for affirming the decision under review, was given to the applicant in accordance with s.424AA of the Act, and the applicant does not suggest otherwise.

19. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

20. The Tribunal's findings and conclusions, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave.  Credibility findings are a matter par excellence for the Court (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

21. The applicant's complaints appeared more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

22. There is no jurisdictional error apparent on the face of the Tribunal's decision record or in the conduct of its review, and none has been particularised or identified by the applicant.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 29 May 2017