BWK15 v Minister for Immigration

[2016] FCCA 3185

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWK15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3185

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection (Class XA) visa (Protection visa) – whether it was reasonably open to Tribunal to take into account previous inconsistent statement of applicant – whether it was reasonably open to find applicant not credible because he claimed not to recall details of applicant’s wife application for Protection visa in which the applicant had given evidence – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: BWK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2518 of 2015

Judgment of: Judge Manousaridis

Hearing date: 25 November 2016

Delivered at: Sydney

Delivered on: 9 December 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms N Johnson of Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2518 of 2015

BWK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the People’s Republic of China (China), applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

2. Before I turn to the grounds on which the applicant relies it will be necessary to set out the applicant’s migration history, the claims he made for protection, and the Tribunal’s reasons for not accepting those claims.

Migration history

1. The applicant arrived in Australia on 10 April 2009 as the holder of a tourist visa. On 20 April 2009 the applicant applied for a Protection visa (First Protection Application) as a member of his wife’s family unit. In that application, the applicant’s wife claimed to fear harm based on her membership of the local church. The applicant did not advance his own claims for protection. The First Protection Application was refused on 17 July 2009, and the applicant and his wife applied for review to the Refugee Review Tribunal (First Tribunal). The First Tribunal affirmed the delegate’s decision not the grant the applicants a Protection visa on 18 December 2009.

2. The applicant remained in Australia after the First Tribunal refused the claims. The applicant claims that he and his wife have separated, and that she has since returned to China.

3. The applicant again applied for a Protection visa on 29 November 2013. He was able to do that, notwithstanding s.48A of the Migration Act 1958 (Cth) (Act), because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship.[1]

   [1] [2013] FCAFC 71

Claims for protection

1. In his application for a Protection visa, the applicant claimed he feared being persecuted because he was “being persecuted by the Company manager of procurement department and his associates and the associated police as I am a whistle blower to their briberies and corruption in procuring the inferior quality of products but paid in higher than the market prices”.[2] The applicant claimed he left China because he had incurred gambling debts of more than 1 million yuan. He claimed he was enticed into gambling because he had become a whistle blower. After he left China, “they have shifted their criminality of purchasing inferior products in higher prices to” the applicant, and had made him “the scapegoat for their briberies”.[3]

   [2] CB106

   [3] CB107

2. Before the delegate, the applicant said he separated from his wife after the First Tribunal refused their application; the applicant has not worked after the First Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa, and has been in hiding from the Department; in China the applicant worked for a steel company where he did the purchasing; in March 2008 he found the products were defective; the purchasing department’s manager, Mr HNF, approached the applicant to socialise and introduced the applicant to gambling; when he was gambling, the applicant was arrested by two police officers and detained him for more than ten days before he was released with a warning not to report his manager anymore; after he was released, the applicant was asked to repay his gambling debts; he would be asked to repay his debts every three or five days; and the applicant then left for Australia.

Tribunal’s decision

1. Because the applicant had previously applied for a Protection visa as a member of a family unit of a person who did apply for a Protection visa, the Tribunal considered that it was bound to assess the applicant’s claims against both s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).

2. The Tribunal had significant concerns about the credibility of the applicant, and found the applicant was not a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims.[4]  The Tribunal relied on the following matters.

   [4] CB180, [23]

3. First, the Tribunal found the applicant’s evidence about his work was inconsistent, changing, and not credible in numerous respects:[5]

   a)The applicant was vague and evasive about when he finished school and the work he did after he left school.[6]

   b)The applicant told the Tribunal he began work in the steel company in 2007, whereas in his application form he claimed he started at the steel company in March 2001,[7] and before the First Tribunal the applicant said he began working with the steel company in 2003.[8]

   c)The applicant gave to the Tribunal inconsistent evidence about his role in the steel company. He initially told the Tribunal his first job was supervising workers. When asked for further details, the applicant changed his answer, stating that he worked for the purchase department. He then stated his position to be that of “purchasing officer”.[9]

   d)The applicant gave inconsistent evidence about when he stopped working for the steel company.[10] In his application for a Protection visa, the applicant said he continued working for the steel company until he left for Australia in April 2009. The applicant, however, told the Tribunal that he made three complaints about his manager in March, April, and May 2008, and that he could no longer live at the factory because people wanted to assault him. The applicant then said he stopped going to work in May 2009. He then said he worked but he did not show himself personally to his boss for the rest of the time he worked there.[11] On the other hand, before the First Tribunal, the applicant said he resigned from his work in the factory at Anhui Province in about December 2007 because of police harassment due to the applicant’s wife’s local church activities.[12]

   [5] CB181, [24]

   [6] CB181, [25]

   [7] CB181, [26]

   [8] CB181, [27]

   [9] CB181, [28]

   [10] CB182, [29]

   [11] CB182, [29], second dot point

   [12] CB182, [29], second dot point

4. Second, the applicant told the Tribunal he obtained his passport to come to Australia in 2007, and he wanted to come to Australia to avoid the problems at his work. The Tribunal considered this to be inconsistent with his evidence that the applicant’s problems at his work started in March 2008.[13]

   [13] CB183, [30]

5. Third, the applicant gave inconsistent evidence about his detention by police. The applicant told the delegate he was detained for 10 days and then released; the applicant told the Tribunal, however, that he was detained for over one month in July 2008.[14]

   [14] CB183, [31]-[32]

6. Fourth, the applicant claimed that between 10-15 days before he left China (in May 2009) he was abducted by his manager and held for one night, was beaten, but escaped. The applicant said this occurred because “they” told him to stop making complaints.  The Tribunal found this made no sense, given the applicant’s evidence was that he last made a complaint in March 2008.[15]

   [15] CB183, [33]

7. Fifth, the Tribunal found parts of the applicant’s claimed history were not credible. The Tribunal did not find credible:[16]

   a)the applicant’s claim that he made a complaint as a whistle blower, yet went out socially with the manager about whom he complained, and was deceived into gambling;

   b)the applicant’s claim that he had never gambled before, but that on that one occasion he was drunk and borrowed 1 million RMB;

   c)the applicant contracted the debt from loan sharks in March 2008, yet the loan sharks took no steps to recover the loan during the one year before he left China; and

   d)the applicant’s claim that he feared that on his return his boss and people would look for him and kill him because the applicant had complained about the boss, given that the applicant also said he remained at the company after March 2008.

   [16] CB183, [34]

8. Sixth, the applicant gave evidence before the First Tribunal that was inconsistent with the claim he made to the Tribunal.[17] Before the First Tribunal, the applicant claimed he resigned from his work in December 2007 because of police harassment due to his wife’s local church activities.

   [17] CB184, [35]

9. Seventh, the Tribunal asked the applicant whether he recalled the basis on which his wife had applied for a Protection visa. The applicant said he thought his wife’s claims were based on Christianity, and that she spread and marketed Christianity, but the applicant could not tell the Tribunal anything else about his wife’s claims. The Tribunal put to the applicant that it could not understand why the applicant could not tell it anything about his wife’s claims. The applicant responded by saying he did not want to talk about the past and on being again asked about his wife’s claims, the applicant said he could not tell anything else about his wife’s claims, and that he did not know.[18] The Tribunal put to the applicant that it would have expected the applicant to recall matters concerning the applicant’s wife’s claims, such as his wife’s claiming she belonged to the local church, that his wife had been detained, and that he had paid a bribe to have her released from detention. The applicant did not provide any response or comment to the Tribunal other than to say he was dizzy and that, if he returns to China, he will be killed. The Tribunal considered the applicant’s failure to recall any details about the past claims undermined his credibility, and indicated he is prepared to tell untruths to Tribunals in order to obtain a Protection visa.[19]

   [18] CB184-185, [36]

   [19] CB185, [37]

10. The Tribunal was also not satisfied that the concerns it identified with the applicant’s evidence could be explained by his claimed limited education, or because his “head was muddled”, or because he “felt dizzy and couldn’t remember”.[20] The Tribunal noted that it offered the applicant the opportunity to have breaks and gather his thoughts when he informed it of feeling dizzy, however the applicant said no. The Tribunal also referred to the length of the hearing, noting that it lasted for a total of 2 hours and 50 minutes including two breaks.

    [20] CB185, [40]

11. The Tribunal, therefore, rejected the applicant’s claims in their entirely and concluded the applicant satisfied neither s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of application

1. The application for review contains three grounds. At the hearing before me, the applicant, who is not legally represented, made submissions that, in broad terms, reflected the grounds stated in the application. After the applicant made his submissions, the interpreter, at my request, interpreted each of the grounds stated in the application and invited the applicant to make submissions after each ground was interpreted. The applicant made no additional submissions in relation to the grounds as they were interpreted to him. I propose first to deal with the grounds as stated in the application, and then identify the submissions the applicant made.

Grounds stated in application

1. The first ground stated in the application is as follows:

   The Tribunal failed in taking in account of irrelevant considerations

   In the first Protection Visa (PV) application, the applicant was a dependent applicant who was is a member of the family unit. In terms of his wife’s claim, the Tribunal expected the applicant to recall what his wife has claimed on her PV application. It is unfair to the applicant in his current proceedings. It is irrelevant to his current claims. If it is relevant, then the applicant would make his own claim in the first proceedings. The Tribunal erred in taking account of irrelevant information used against the applicant’s claims.

2. The issue this ground raises is whether it was reasonably open to the Tribunal, when assessing the applicant’s credibility, to take into account the applicant’s apparent inability to recall the grounds on which the applicant’s wife had applied for a Protection visa. In my opinion, it was reasonably open for the Tribunal to do so. The applicant was the husband of the wife at the time she applied for a Protection visa; the applicant himself was an applicant to that application, even though he did not advance any claims on his behalf, and the applicant provided evidence in support of the applicant’s wife’s application for a Protection visa. In those circumstances, it was reasonably open to the Tribunal to expect that the applicant would have had some understanding about the grounds on which the applicant’s wife applied for a Protection visa. It was also reasonably open to the Tribunal to conclude, therefore, that the applicant was not truthful when he claimed he could not remember the details of his wife’s application for a Protection visa; and the applicant, therefore, was willing to tell untruths. In my opinion, it cannot be said that the Tribunal’s conclusion based on the applicant’s claimed inability to recall details of his wife’s Protection application claims was “one at which no rational or logical decision maker could arrive on the same evidence”.[21]

   [21] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] (Crennan and Bell JJ)

3. Ground 1, therefore, fails.

4. The second ground stated in the application is as follows:

   The Tribunal failed to consider all of the applicant’s case.

   The applicant first PV application was refused by the first Tribunal on the basis of his untruthful witness. However, the current Tribunal adopted the evidences provided by the applicant in the first proceedings to rebut the applicant as to his inconsistency of evidences in 2 occasions. If the Tribunal still regarded the evidences provided in the first proceedings were untruthful, then there is no such thing of inconsistency between the 2 proceedings. The Tribunal erred in adopting the first proceedings evidence to rebut the applicant’s evidence submitted to this Tribunal.

5. It is not entirely clear what is intended by this submission. It appears to claim that it was not open to the Tribunal to rely on the evidence the applicant gave before the First Tribunal to show it was inconsistent with the evidence the applicant gave before the Tribunal, because the Tribunal did not accept that the evidence the applicant gave before the First Tribunal was truthful. If that is the intended submission, it misunderstands the relevance the Tribunal attached to the evidence the applicant gave to the First Tribunal. The Tribunal regarded the evidence the applicant gave to the First Tribunal to be relevant, not because the Tribunal did not accept the truth of what the applicant said at the First Tribunal, but because it was inconsistent with what the applicant said before it. The Tribunal found that this affected the credibility of the applicant in general. It was reasonably open to the Tribunal to adopt this reasoning when assessing the applicant’s credibility.

6. One important factor in assessing the credibility of testimony given on one occasion is the extent to which the testimony is inconsistent with testimony given by the same person on a different occasion. Testimony that is inconsistent with testimony previously given is a matter on which a rational fact-finder may rely for concluding that the testimony is not worthy of credit. The rational fact-finder is entitled to so conclude without committing himself or herself to the truth or otherwise of the inconsistent assertions:[22]

   The attack by prior inconsistent statement is not based on the theory that the present testimony is false and the former statement true. Rather, the theory is that talking one way on the stand and another way previously is blowing hot and cold, raising a doubt as to the truthfulness of both statements.

   [22] Kenneth S. Broun et al (eds), McCormick on Evidence (Thomson Reuters, 7^th ed, 2013) vol 1, 209

7. It was reasonably open to the Tribunal to have regard to the evidence the applicant gave before the First Tribunal in determining whether that evidence was inconsistent with the evidence the applicant gave to the Tribunal and, to the extent the Tribunal found it was inconsistent, to draw inferences adverse to the credibility of the applicant. In my opinion, it was reasonably open to the Tribunal to conclude the applicant did give evidence before the First Tribunal that was inconsistent with the evidence he gave before the Tribunal, and to rely on that inconsistency as a reason for not accepting the applicant to be a credible witness.

8. Ground 2, therefore, fails.

9. The third ground is:

   The Tribunal erred in arriving at a conclusion without supported [sic] evidence.

   At paragraph 30, the Tribunal arrived at its findings that “the applicant could not have obtained his passport because of those problems.” However, the Tribunal did not make any findings in respect of “the problems” but rather on its assumption that the applicant’s “problems” would be his claims in the second PV application.

10. This ground appears to claim that the Tribunal incorrectly assumed that the “problems” to which the applicant referred when answering the Tribunal’s question why he wanted to come to Australia in 2007 was intended by the applicant to be a reference to the problems that were “the subject of his claims”. There is not in evidence the transcript of the hearing before the Tribunal. It is not possible, therefore, to determine whether the Tribunal’s recording “the subject of his claims” recorded what the applicant expressly said, or the Tribunal’s interpretation of what the applicant said. Nevertheless, assuming the words “the subject of his claims” represent the Tribunal’s conclusions, based on the Tribunal’s reasons themselves, it was reasonably open to the Tribunal to interpret the applicant’s reference to the “problems at work” to be a reference to the problems that were the subject of his claims. There is no material before me that could reasonably suggest that the “problems at work” could have referred to something other than the problems that were the subject of the applicant’s claims.

11. Ground 3, therefore, fails.

The applicant’s oral submissions

1. At the hearing before me, the applicant made a number of submissions. First, he submitted it was unfair the Tribunal treated the applicant’s wife’s application for a Protection visa as an application that was made by the applicant. He submitted his application for a Protection visa was separate from his wife’s application.

2. This does not disclose any jurisdictional error by the Tribunal. The Tribunal was aware that the applicant, although party to the application for a Protection visa the applicant’s wife made, did not make a claim for protection on his own behalf. It is for that reason that the Tribunal considered the applicant’s claims made in his application for a Protection visa, had to be assessed both under s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal relied on the evidence the applicant gave before the First Tribunal to find the applicant had given evidence that was inconsistent with the claims the applicant made in support of his application for a Protection visa. It was reasonably open to the Tribunal to consider the applicant’s evidence for that purpose, because, for the reasons I have already given, whether or not a person has given inconsistent evidence is relevant to assessing that person’s credibility.

1. Second, the applicant submitted that the reason the applicant applied for his passport in 2007 is that he had a “hunch” in that year that he would face difficulties. That, however, is not a matter the applicant raised with the Tribunal. That is evident in the following passage from the Tribunal’s reasons for decision:[23]

   The Tribunal asked why he wanted to come to Australia, and he said he needed it because he needed to avoid the problems at work (the subject of his claims). The Tribunal put to the applicant that according to his claims, the problems at his work started in March 2008, but his passport had been issued in March 2007; thus he could not have obtained his passport because of those problems. In response the applicant said he is feeling dizzy. The Tribunal offered a break, however he said he did not want one.

   [23] CB183, [30]

2. It follows, therefore, that even if the reason the applicant applied for a passport in 2007 was because he had a “hunch” he would encounter difficulties at his work, that gives rise to no jurisdictional error by the Tribunal, because the applicant did not communicate this evidence to the Tribunal.

3. Finally, the applicant submitted he was unaware of what was contained in his wife’s application for a Protection visa. As I have already noted, it was reasonably open to the Tribunal to draw the adverse inferences it did on the basis of the applicant’s asserted ignorance of his wife’s claims for protection. Further, whether or not the applicant was aware of what was contained in his wife’s application for a Protection visa, the applicant gave evidence before the First Tribunal in support of his wife’s claims which the Tribunal found was inconsistent with the evidence the applicant gave to the Tribunal in support of his claim for protection.

Conclusion and disposition

1. The applicant has not succeeded on any of his grounds. I propose, therefore, to dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 December 2016