BYO15 v Minister for Immigration

[2017] FCCA 1034

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYO15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1034

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the various inconsistences identified were matters of a minor, peripheral or trivial nature –the detention notice was an obvious and significant event in relation to the first applicant’s claims – the inconsistencies in relation to the detention notice was a matter open to the Tribunal to make findings – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

First Applicant: BYO15

Second Applicant: BYP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2614 of 2015

Judgment of: Judge Street

Hearing date: 18 May 2017

Date of Last Submission: 18 May 2017

Delivered at: Sydney

Delivered on: 18 May 2017

REPRESENTATION

Solicitors for the Applicants: Mr M Arch
Christopher Levington & Associates

Solicitors for the Respondents:

Ms C Hillary

DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2614 of 2015

BYO15

First Applicant

BYP15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act with respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 September 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The first applicant and the second applicant are husband and wife and were found to be citizens of China and their claims were assessed against that country. The second applicant was included as a member of the family unit on behalf of the first applicant. 

3. The first applicant arrived in Australia on 10 December 2013 on a subclass FA600 visitor visa which was valid until 10 March 2014. It was not until three days before that visa was to expire on 7 March 2014 that the first applicant applied for a protection visa including the second applicant as a member of the family unit. 

The delegate’s decision

1. Although invited to appear before the delegate, the applicants did not do so. Before the delegate the information in the original application identified the first applicant’s fear of persecution by reason of his religion being a Christian and from a Christian family. The first applicant alleged that he was treated unequally because of his family and his religion. The first applicant alleged that he could not live a normal life so he decided to leave China. The applicant alleged that his father had been abused and that he and his family had had a sad life. The first applicant believed that he would be persecuted by the Chinese Communist Party if he returned. The first applicant alleged that because of father’s history and his religious problem, he suffered prejudice in the workplace. 

2. The first applicant alleged that in 1979 he was framed and alleged to have been involved in corruption. The first applicant alleged that, as a result of the position of him being framed in corruption, he was then under investigation by the authorities and had to report every day. The first applicant alleged that he still suffered from that until his time of departure and that he will have the same experience if he returns. The first applicant alleged that he lost his job and suffered from diseases as a result of the corruption allegations and he referred to having cerebral thrombosis. 

3. The first applicant alleged that he reported his experience to the central government in Beijing, but in vain and that he was under supervision by the local authority and that if he went back, he would still be watched by them. The first applicant alleged that in 2010, he decided to go to Beijing to lodge an appeal and that there was a disturbance by someone from the local government and that he suffered from a fracture during the disturbance and that from then on, he could not live by himself and had to be cared for by his wife. 

4. The delegate found that the first applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act and found that the applicants were not persons in respect of which Australia had protection obligations.

The Tribunal’s decision

1. On 20 August 2014, the applicants applied for review. As a result of a request for postponement, the applicants were invited by letter dated 2 June 2015 to attend a hearing to take place on 20 August 2015. The applicants appeared on that date to give evidence and present arguments and were represented by their registered migration agent although the agent did not attend that hearing. 

First applicant’s statement 28 May 2015

1. Prior to the hearing, the first applicant provided a statement to the Tribunal comprising six pages. That statement made reference to a problem that the applicants’ son had and a need for medicine by the applicants’ son and the need to obtain funds to pay those medical fees. The statement made reference to the first applicant being too desperate to make a complaint against the government with his family and Christian fellows. The first applicant alleged that he was suspected of speaking ill of the government and that he was detained by the policemen on 26 May 2011. The first applicant alleged that he was with three Christian fellows in his home and the policemen came in and asked for ID. The applicant alleged on that occasion, that the policeman, having known that the first applicant was Christian, provided a detention notice and took the first applicant out of the house apparently on the basis that the first applicant should not have gathered with Christians and disturbed the social peace.

2. The first applicant alleged that his three fellows were also detained at the police station and that they were arraigned for about three days and that the first applicant then met his lawyer. The first applicant alleged that he was arraigned about eight times, that he was asked about a petition letter, and was forced to repeat the letter that he sent to the local complaint department. The first applicant alleged that he was detained owing to his religious belief. The first applicant alleged that he had diabetes and his health deteriorated due to the long detention that he suffered. The first applicant alleged that he asked if he could serve outside the prison. 

3. The first applicant alleged that he was arrested after 37 days detention for the same reason in order to continue the interrogation. The first applicant alleged he was interrogated over 10 times. The first applicant alleged he was abused for over 20 hours and kept awake and that he was finally sent to the dispensary owing to hypoglycaemia. The first applicant alleged that he then asked to see his lawyer and that the situation did not change even after his lawyer questioned the policemen for abusing him during the interrogation. 

4. The first applicant alleged that he was locked up in a small dark house without windows and light, that he was held here for about four days.  The first applicant alleged that he was then arraigned for 11 days and then was told that the policemen had approved the application for him to serve outside the prison and that the officials allowed him to go back home on the condition that he would stop petitioning and no longer gather Christians in his house. 

5. The first applicant alleged that he could not submit to what he was told and that he pointed out what had been done to him was illegal and that he had a right to turn down such improper requirements. The first applicant alleged that there was a drastic dispute over the rights issue in respect of his freedom of speech and protection of rights and suddenly one interrogator threw a chair at him and that he tried to dodge it but unfortunately it struck his thigh violently and that he could not even take one step.

6. The first applicant alleged that the interrogators did not ask the doctors to treat him and send him back to the detention house. The first applicant alleged after three months that his family came and his wife saw him and knew that he had a problem with his thighbone and the applicant describes having to have one operation in relation to his thigh which required him to spend time at home recuperating. The first applicant alleged over two months while was recuperating, two auxiliary policemen monitored him and that when the first applicant was available to leave hospital, his family were asked in essence for a bribe to pay the policemen 50,000 RMB.

7. The Tribunal identified the first applicant’s background, the Tribunal set out the relevant law, and the Tribunal set out the first applicant’s claims and evidence. 

Consideration of the first applicant’s credibility

1. The Tribunal made adverse credibility findings in relation to the first applicant and provided detailed reasons in support of those adverse credibility findings including the adverse credibility finding in respect of the applicant’s daughter who gave evidence. The adverse credibility findings were identified over 14 different topics, none of which could be said to be trivial, peripheral or minor. Each of the adverse findings was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

2. The Tribunal observed that it was conscious that ultimate credibility assessments should not be made on the basis of pedantically picking evidence to pieces. The Tribunal observed that most of the difficulties identified in the first applicant’s claim would not alone lead to adverse credibility findings. The Tribunal however observed that the cumulative impact of these difficulties was very significant. The Tribunal observed that the failure of the first applicant to include as part of the original protection visa application the details of harm which he has provided to the Tribunal is particularly significant. The Tribunal observed that the new claims provided to the Tribunal do more than just add detail. The Tribunal observed that they changed the nature of the claims. Those observations by the Tribunal were open on the material before the Tribunal.

Consideration of the first applicant’s claims

1. The Tribunal was not satisfied as to the key substantive aspects of the first applicant’s claims. The Tribunal was not satisfied that the first applicant was of adverse interest to the authorities as a result of petitioning in relation to his son, or holding a church gathering in his home in 2011. The Tribunal was not satisfied the first applicant was arrested in 2011, detained and physically harmed for the reasons and the circumstances that the first applicant described. The Tribunal was satisfied the first applicant suffered a hip and leg fracture and underwent medical treatment as a result, but was not satisfied that this was for the reasons claimed by the applicant. The Tribunal was not satisfied the first applicant was monitored in the hospital by police. 

2. The Tribunal was not satisfied the first applicant or his family had to pay authorities a sum of money following the release from hospital.  The Tribunal was not satisfied the first applicant was subject to ongoing monitoring by the authorities after his release from hospital, including visiting his home, including visiting and questioning members of the first applicant’s family. The Tribunal was not satisfied the first applicant was told not to leave his home area. The Tribunal was not satisfied that the first applicant has been denied a pension. The Tribunal was not satisfied that the person renting out the first applicant’s home since he left Australia has been contacted regularly by the authorities looking for the first applicant. The Tribunal was not satisfied that the first applicant’s daughter was questioned by authorities when she returned to China in 2011 or 2015 about the first applicant’s condition, warned not to attend church, or asked questions about the first applicant’s whereabouts.

3. The Tribunal was not satisfied the first applicant petitioned to Beijing in 2010. The Tribunal was not satisfied the first applicant was under supervision by the local authority and suffered a fracture during a disturbance by someone from the local government. The Tribunal was not satisfied the difficulties faced by the first applicant and his family before 1980 created any difficulties for the first applicant following his retirement in 1980. The Tribunal was not satisfied that any difficulties the first applicant faced up until his retirement including due to religion, prejudice in the workplace, being framed for corruption in 1979 and being investigated and having to report, created any difficulties for the first applicant after his retirement. 

Further assessment of the first applicant’s credibility

1. Taking into account the overall credibility concerns of the Tribunal of the first applicant’s evidence, the Tribunal was not satisfied that the first applicant would engage in petitioning activities on return to China in any way that would create a risk of harm from the authorities. The Tribunal found that documents provided by the first applicant did not overcome the credibility issues identified by the Tribunal. 

2. The Tribunal was not satisfied that there has been past arrest, detention, interrogation, harm, threats of harm, adverse attention by authorities in the applicant in relation to either petitioning or church activities, ongoing monitoring and questioning of the first applicant or his family or restrictions on the applicant’s ability to travel which he has breached, that create a real chance of the first applicant facing serious harm in the reasonably foreseeable future should he return to China. 

3. The Tribunal was not satisfied that difficulties arose for the first applicant up until the end of the 1980s including in relation to his religion to create a real chance of the first applicant facing serious harm in the reasonably foreseeable future should he return to China.

4. The Tribunal was not satisfied the first applicant would engage on return to China petitioning activities that will create a real chance of serious harm to the first applicant. The Tribunal was not satisfied the first applicant faces a real chance of serious harm based on being a member of a registered church including hosting church members in his home in relation to calligraphy activities and prayer. 

Assessment of refugees Convention criteria

1. The Tribunal was not satisfied that the first applicant had a well-founded fear of persecution for reasons of his religion, political opinion or for any other Convention reason including as a result of difficulties that occurred up until 1980s, difficulties that occurred in the applicant’s workplace up until his retirement, difficulties in relation to his religion up until his retirement, petitioning activities in relation to health issues suffered by his son or in relation to any other issues, arrest, detention, interrogation and harm from petitioning activities as well as on the basis of holding a church gathering at home, the payment of money to authorities to leave hospital, monitoring and questioning by authorities for the first applicant and his family or at his former home, an edict by authorities for the first applicant not to leave the area, future petitioning activities, loss of pension, health issues or for any other reason. 

2. The Tribunal found that it was not satisfied that the first applicant faces a real risk of significant harm as a result of past harm, detention, interrogation, threats of harm, actual harm, adverse attention by authorities in relation to either petitioning or church activities, monitoring or questioning of the first applicant and his family and indication for the first applicant not to leave his home area, future petitioning activities or loss of pension. 

3. The Tribunal was not satisfied that any of the first applicant’s health conditions, most particularly the fracture to his hip and leg have been caused by intentional actions of the authorities. The Tribunal was not satisfied there would be any element of intention by any person to cause the first applicant harm due to the continuation or exacerbation of his medical condition should he return to China. The Tribunal was not satisfied that any challenge the first applicant may face with his health conditions due to the Chinese health system results in an intention by any entity or person to cause the first applicant harm. The Tribunal was not satisfied the first applicant faces a real risk of significant harm as defined in the Act as a result of the ongoing problems due to his health conditions.

4. The Tribunal found that the first applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act and accordingly found that both applicants were not entitled to protection obligations of Australia and affirmed the decision under review.

Before this Court

1. The grounds of the application are as follows:-

   1. The Administrative Appeals Tribunal (Tribunal) erred when it affirmed the First Respondent's decision not to grant the applicants Protection Visas.

   Particulars

   a. The Tribunal erred when it held (at paragraphs 79 and 84) that it was not satisfied that the applicant had a well- founded fear of being persecuted for reason of his religion or that there are substantial grounds for believing that, as a necessary and foreseeable risk of being removed from Australia, there is a real risk that he will suffer significant harm due to his religion.

   b. The Tribunal failed to consider and give proper weight to independent evidence (specifically the International Religious Freedom Report 2013) which describes instances whereby Christians were sentenced in Ye County, Henan Province, to prison terms ranging from three to seven-and-a-half years reportedly for recording and copying sermons.

   c. The Tribunal erred when it held at paragraph 42 that an adverse inference arose by reason of the applicant having failed to fully canvas all relevant claims at the earliest opportunity. No adverse inference arises by that failure.

   d. The Tribunal erred when it held at paragraph 44 that it was material that inconsistent evidence had been given by the Applicant to the effect that his wife was present or not present at the time of his detention. The alleged inconsistency is immaterial to the matters before the Tribunal for determination in the current case by reason of there being no dispute to the fact of his detention by local authorities as canvassed in paragraphs 45 to 48 inclusive.

   e. The Tribunal erred when it held at paragraph 49 that it was material that inconsistent evidence had been given by the Applicant to the effect of the date of his detention. That fact of his detention and the date is shown by that document (see paragraph 240. No adverse inference or adverse finding as to credibility arises as a consequence of a failure of recollection or a mistake as to a date.

   f. The Tribunal erred when it held at paragraph 45 that it was material that inconsistent evidence had been given by the Applicant to the “circumstances" of his detention when the documentary evidence of the detention itself (detention notice) in effect “speaks” for itself. That fact of his detention and the date and circumstances are shown by that document (see paragraph 24).  No adverse inference or adverse finding as to credibility arises as a consequence of a failure of recollection or a mistake as to a date, circumstances or other matters canvassed in the relevant document.

   g. The balance of the alleged inconsistencies at paragraphs 50, 51, 52, 53, 54, 55 all go to alleged inconsistencies regrading facts and circumstances only remotely linked to the applicants claim of persecution. The consistent attack on the applicants credibility is overall indicative of a failure to act reasonably and fairly as contemplated in section 353(2) of the Migration Act 1958. The Tribunal fell into the error it identifies in paragraph 65 of the decision record.

   h. Paragraph 65 is entirely speculative and there is no independent evidence to support the “opinion"   of the Tribunal. No adverse inference arises in the context of that opinion. The ‘evidence' as to the relevant procedure concerning departures which appears at paragraph 57 does not support an adverse finding by reason of the applicant not having been detained when he departed the PRC.

Consideration

1. Mr Arch, the solicitor for the applicants, sought to argue that the findings of inconsistencies on 14 matters identified by the Tribunal were matters of a minor peripheral or trivial nature. I reject that submission. Each of the adverse findings identified by the Tribunal were open and concerned matters in relation to the first applicant’s claims. The adverse findings cannot be said to lack an evident and intelligible justification.

2. Further, there is no basis to identify the combined findings as identified by the Tribunal in respect of credibility as being peripheral, minor or trivial.

Paragraph (a)

1. It was open to the Tribunal to make the adverse credibility findings made and in substance ground 1 is an invitation to this court to engage in an impermissible merits review.  Paragraph (a) of ground 1 does not identify any jurisdictional error. 

Paragraph (b)

1. Paragraph (b) was abandoned.

Paragraph (c)

1. In relation to paragraph (c), given the limited information provided by the applicant in relation to his application for protection, it was open to the Tribunal to identify the applicant as not having fully canvassed his claims and to identify that what occurred was the introduction of new claims by the applicant and more than just detail to the core claim of fear by reason of his Christian practice and that of his family. 

2. The proposition that no adverse inference was open on the inconsistency is not correct. The differences between the information originally provided to the Department and the applicant’s subsequent identification of claims was open to the Tribunal. 

Paragraph (d)

1. In relation to paragraph (d), the inconsistency concerning the presence of the applicant’s wife was in respect of a significant event involving detention was a matter open for adverse comment by the Tribunal in respect of credibility findings.

Paragraph (e) and (f)

1. The inconsistency in the first applicant’s evidence given to the Tribunal in respect of when he was detained and in relation to the detention notice was a matter open to the Tribunal to make findings. On the material before the Tribunal, it is apparent that the Tribunal took into account what the applicant said in his written statement in relation to an incident in 2011 in those findings adverse to the applicant. 

2. The detention notice, the subject of adverse findings in relation to paragraph 45 of the Tribunal’s reasons, purported to identify in accordance with Article 232 of the Criminal Procedural Law of People’s Republic of China, that the applicant was in criminal detention at 17:00 on 2 May 2011, on suspicion of committing a crime of gathering religious people to describe social order and he is now detained in a watch-house. That detention notice was purportedly dated 2 May 2011. It was an obvious and significant matter in relation to the first applicant’s claims. The adverse credibility findings by the Tribunal in relation to that notice were open. 

Paragraph (g)

1. In relation to paragraph (g), Mr Arch sought to argue that the various inconsistencies were as identified above, matters of a minor, peripheral or trivial nature. That submission is without substance.  The adverse findings were open in respect of matters of significance to the Tribunal in respect of the first applicant’s credit. 

Paragraph (h)

1. In relation to paragraph (h), this is in substance a repetition of the issue raised in paragraph (c). The criticism of the finding by the Tribunal that the new claims provided to the Tribunal do more than just add detail and changed the nature of the claims was open on the material before the Tribunal. 

Conclusion

1. No jurisdictional error as alleged in ground 1 is made out. The application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2017