BZV16 v Minister for Immigration

[2019] FCCA 1103

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZV16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1103

Catchwords:
MIGRATION – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – applicants claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – applicants seek to engage in impermissible merits review – no jurisdictional error identified – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

SZFWB v Minister for Immigration and Citizenship [2007] FCA 167

SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243

First Applicant: BZV16

Second Applicant: BZX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1989 of 2016

Judgment of: Judge Dowdy

Hearing date: 28 March 2019

Delivered at: Sydney

Delivered on: 28 March 2019

REPRESENTATION

The First Applicant appeared in person on her own and the Second Applicant’s behalf.

Counsel for the First Respondent: Mr T. Reilly of Counsel

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 26 July 2016 is dismissed.

2. The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 17 May 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1989 of 2016

BZV16

First Applicant

BZX16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The First Applicant in this proceeding is a male citizen of China, having been born 12 September 1975.  The Second Applicant is a female citizen of China, having been born on 24 March 1980 (collectively, the Applicants).

2. By Application filed in this Court on 26 July 2016 they seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 October 2014 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).

Background

1. The Applicants were granted Visitor (Class FA) (Subclass 600) visas in Peking on 31 October 2013 which were valid for three months from the date of their arrival in Australia. 

2. The Second Applicant arrived in Australia on 17 November 2013 and the First Applicant arrived in Australia on 1 December 2013.  On 12 February 2014 they lodged their applications for Protection visas with the Second Applicant applying as a member of the family unit of the First Applicant and making no specific claims for protection in her own right.

Claims for Protection

1. The First Applicant’s claims for protection were set out in a four page statement forming part of his Protection visa application.  In short, the First Applicant claimed:

   a)he owned a house and about 200 square meters. In June 2012 the Chouhu local government planned to acquire houses and land in the village to build factories. In early July discussions began regarding the relocation and compensation issues with the requirement that landowners relocate before August 2012. Initially, it was agreed that 2,200RMB per square metre would be paid. Some villagers bribed corrupt officials and were then offered 4,000RMB per square metre. The First Applicant did not have the background, the connections within the government or the financial capacity to do so. The amount his family was being offered was insufficient to meet their needs;

   b)on 1 August 2012, the Dismantle and Relocation Office increased the compensation to 2,500 per square metre and asked them to move out the following day;

   c)on 8 August 2012, officials from the government Dismantle Office, the land developer, police and city management office and twenty thugs arrived. After refusing to leave, an altercation occurred involving his parents and wife. In order to stop the attack on them, he grabbed a pole and was then surrounded and struck by the thugs. One of the thugs became irritated and took a kitchen knife saying he wanted to kill the First Applicant. Because the First Applicant's eyes were bleeding he was not able to escape and the thug cut the First Applicant's arms, face and neck and caused bruises to his legs and his knee was injured. He became unconscious. His friends and villagers helped rescue him and took him to the hospital. His mother was hospitalised as her head and waist were broken by forcible dragging;

   d)after five days the First Applicant started receiving medical bills and he was asked to pay 20,000RMB. He did not have the funds to pay so both he and his mother were discharged from hospital. When they returned home, the house, pig sty and sheepfold had been damaged and the animals either hurt or killed;

   e)the police said they were unable to find who undertook the offence and the First Applicant claimed that this was despite the police arriving with the thugs;

   f)he decided to appeal to a higher level of government but no one in the land developer's office, nor the police nor the courts would speak to them. He was detained for 24 hours because he went to the police;

   g)despite the villagers petitioning the county, city and provincial governments, they were unable to obtain redress and one relative informed him that if someone makes an enemy of the government and police, they will be beaten up and buried alive in concrete in the foundations of a building; and

   h)the Chinese government has charged him with defamation and intentional assault and he would be arrested if he returned to China.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]  The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The First Applicant took part in an interview with the Delegate on 18 September 2014 in which he reiterated the claims made in his Written Statement and gave further information to the Delegate. 

2. The Delegate in his Decision Record did not accept that the First Applicant and his mother were attacked in the circumstances as claimed by him or that he came to the further adverse interest of two Chinese government officials and police as a result of petitioning and appealing for redress and for payment of compensation, nor did he accept that the First Applicant would be arrested if he returned to China because he had been charged with defamation.

3. Overall, the Delegate was of the view that the First Applicant was not a credible witness regarding the claimed circumstances of the attack, but rather that these claims had been fabricated for the purposes of his Protection visa application and the Delegate was not satisfied that the First Applicant was of any adverse interest to the Chinese authorities.

4. Accordingly, the Delegate was not satisfied that Australia owed protection obligations to the First Applicant under either the Refugees Convention criterion or the complementary protection criterion and he refused to grant the Protection visas to the Applicants.

Tribunal Decision

1. The Applicants applied to the Tribunal for merits review of the Delegate’s decision on 14 November 2014 and appeared before the Tribunal on 12 February 2016 and then again on 8 June 2016 to give evidence and present arguments.  At the hearing the First Applicant apparently informed the Tribunal that, in fact, he and the Second Applicant had a 16 year old son back in China whose existence had not been disclosed in the Protection visa application form of either the First or Second Applicant, as required.

2. At [18] of its Decision Record the Tribunal referred to the existence of this son and recorded that it considered that the existence of the son had not been disclosed by the First Applicant because it was likely to impact on the strength of his application for protection and that the failure to disclose the existence of the son raised a credibility concern for the Tribunal.

3. At [25] of its Decision Record the Tribunal referred to a number of photocopies of photos which had been submitted by the Applicants at the time of their Protection visa applications and which showed wounds to the First Applicant’s neck, upper arm, face and hands.  The Tribunal then went on at [25] to describe the photos and to record that the First Applicant showed the Tribunal a number of scars which he had on his person which matched the wounds shown in the photos.  The Tribunal went on at [25] to note and acknowledge that the First Applicant had scars which seemed to be consistent with the photos, but recorded that it had pointed out to him at the hearing that this did not itself establish how, by whom and in what circumstances the scars were inflicted.

4. At [33] of its Decision Record the Tribunal noted a new claim made at the Tribunal hearing to the effect that the First Applicant had been taken off a coach and arrested by police and detained for a further 24 hours, he had been slapped in the face and that he was told that the next time he sought to complain to government authorities he and the others with him, being about 10 or more people, would be killed.

5. At [36] – [45] of its Decision Record the Tribunal recorded its consideration of two documents which had been given to it by the First Applicant, being first a document about land requisition of Fengyang Village Group Number 4 and 5 dated 6 June 2012 and second, a house acquisition compensation agreement for DunTou Town Key Projects dated 10 July 2012.  The originals of these documents had been provided to the Tribunal, which had asked for English translations, which translations were provided by the Applicants on 26 February 2016 and the Tribunal arranged for the originals to be examined for authenticity by the Document Examination Unit of the Department, which ultimately opined that for each document:

   …that the quality of security presents limits the ability to determine whether this is a legitimately manufactured document.  The result is inconclusive.

6. At [63] of its Decision Record the Tribunal considered a further claim for protection made by the First Applicant at the Tribunal hearing in relation to him fearing harm if he returned to China because a person from the demolition team earlier referred to had been promoted and was now working as a director of the Public Security Bureau office (PSB).

7. In the result the Tribunal at [66] and [67] of its Decision Record summarised its adverse general conclusions in relation to the claims for protection and affirmed the decision of the Delegate not to grant Protection visas to the Applicants.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicants relied upon the following Grounds:

   1. AAT made a mistake about the fact that Chinese government official can also be the police officer.

   2. AAT has no grounds to refuse my photos which is true.

   3. AAT is making mistakes about the fact that the documents I recovered from the ruins are intact. In fact, the documents are in pieces which I used the tape to stick them together. AAT made a finding based on a false fact and said it was unreasonable.

   4. AAT said I’m not credible because I wanted to protect my son in China as I didn’t volunteer the information. This reasoning is not logic and harsh on me. AAT should have understood my concerns of a father.

Consideration

Ground 1

1. I note that at the hearing the First Applicant made submissions which unfortunately did not constitute any assertion of jurisdictional error, but which sought rather to invoke a merits review of the findings of the Tribunal and to argue with the factual findings of the Tribunal.  In this respect the fact of the matter is that the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal:  see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13] where Flick J said:

   [13] The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.

2. In my view, Ground 1 seeks to argue with a finding that was legally open to the Tribunal and which finding does not lack an intelligible justification.  The consideration and conclusions of the Tribunal in relation to the claim that the demolition team member was promoted to be a director of the PSB was dealt with at [63] – [65] of its Decision Record, as follows:

   [63] When asked what he fears if he returns to China, the applicant said the person, Jing Ting YAN, from the demolition team who he hurt in the claimed incident regarding the demolition of his home had been promoted and was now working as the director of the PSB. The applicant also claimed that his older brother told him that this director had sent people to harass him, and the applicants' son and that the parents had been held for 24 hours. The applicant also said that one person who was affected by the forced demolition, Chao Yuan Fang was arrested and another, Han Bo Mi has disappeared. The applicant claimed that these so-called accidents suggest to him that he cannot go back to China.

   [64] The Tribunal asked how someone who was working in a demolition team could be promoted to head the Public Security Bureau office. The applicant claimed that where he comes from everybody has two positions. The Tribunal was not satisfied that a person working on a demolition team would become the Director of the Public Security Bureau in the district as the proposition is far-fetched and implausible.

   [65] The Tribunal considered these late claims in the context of the applicant's overall credibility. Given the concerns about the applicant's credibility, the lack of corroborating evidence and their implausibility, the Tribunal did not accept the applicant's claims that a former demolisher was now the director of the PSB and was harassing members of his family.

3. In my view it was legally open to the Tribunal to have regard to the fact that the claim in this regard was made late and also in the context of its findings about the First Applicant’s overall credibility.  It was entitled, for the reasons which it expressed, to find that this claim was implausible and not to accept that a former demolition team member was now the director of the PSB and harassing members of his family.

4. In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

1. This Ground relates to [25] of the Decision Record of the Tribunal, which says as follows:

   [25] The applicant claimed that both he and his mother were taken to hospital by his uncle and in the meantime their house was demolished and their two pigs were killed. He was kicked out of hospital on 15 August because he was unable to pay for the care. A number of photocopies of photos were submitted with the Protection visa application showing wounds to a person's neck, upper arm, face and hand are on the departmental file. Folio’s 4, 5 and 6 appear to show the applicant and folios 2 and 3 show the wounds on a face and a hand but the person is not shown. The applicant also showed the Tribunal a number of scars he has which matched the wounds shown in the photos. The Tribunal acknowledged the applicant had scars and that these appeared to be consistent with the photos provided, but the Tribunal pointed out that this did not in itself establish how, by whom and in what circumstance they were inflicted. As the Tribunal did not accept that the incident involving the demolition team (referred to above) occurred, the Tribunal was also not satisfied that the injuries arose from it.

2. I also note that at [34] of its Decision Record that the Tribunal dealt with photographs of facial injuries which were claimed to have been suffered by the First Applicant’s brother. 

3. Once again, I do not consider that the Tribunal has dealt with the photos in any legally unjustified or illegitimate manner.  It did not reject the photos.  It accepted at [25] that the photos matched wounds on the body of the First Applicant and were consistent with the photographs. However, the Tribunal pointed out that which it was legally entitled to point out, that the photos and the wounds on his own body did not establish how, by whom and in what circumstances those scars and injuries had been inflicted.  It was logical for the Tribunal, not having accepted that the incident involving the demolition team had occurred, to be satisfied also that the injuries depicted in the photos and on his body had not arisen from that incident. As the Tribunal again noted in the last sentence of [44] of its Decision Record: “it does not deny that he has scars but again explained that they could be caused by anything for any reason”.

4. In my view, Ground 2 fails to establish jurisdictional error.

Ground 3

1. Ground 3 relates to the documents considered by the Tribunal which I have described at [15] above. At [45] of its Decision Record the Tribunal refers to the documents as being stained and torn and there is no evidence that this is incorrect. There is nothing in the Decision Record that indicates that, as this Ground seems to assert, the documents were in pieces and that they had been taped or stuck together. Unredacted copies of the opinion of the Document Examination Unit have been produced and comprise Exhibit B. The documents are described as being creased and stained, but there is nothing which suggests that the documents were in pieces and stuck together with tape.

1. Further, whether or not the documents were intact or had been stuck together or taped together does not seem to me to impact upon or undermine anything in the reasoning between [36] and [45] of its Decision Record and the concerns there expressed by the Tribunal about the authenticity of the documents and the production of the documents by the Applicants.

2. In my view, Ground 3 fails to establish jurisdictional error.

Ground 4

1. Ground 4 goes to the issue about the nondisclosure in the Protection visa application forms by both Applicants of the existence of a 16 year old son back in China and relates to [18] of the Decision Record of the Tribunal, which stated as follows:

   [18] The Tribunal asked the first named applicant about his background and family. In this discussion it became apparent that the applicants have a 16 year old son in China. Although the written application included reference to the primary applicant's father, mother and brother it did not refer to his son. The Tribunal asked the applicant three times why his son was not listed in the application. Eventually, the applicant said that he did not want to include his son’s name in so that his son would not get into trouble. When the Tribunal asked who he might get into trouble from, he said there are reports that the Chinese Government can make it difficult for Protection visa applicants. The Tribunal asked the applicant how the Chinese government would know what he had included in his visa application. He said he did not know but friends told him it is best to be cautious. Be that as 'it may, the Tribunal was not satisfied with this response. The Tribunal considered that it was done to conceal the fact he had a son in the event it impacted on the strength of the application for protection. This raised a credibility concern for the Tribunal.

2. There is nothing at [18] of its Decision Record which, in my view, has any tendency to constitute jurisdictional error in the Tribunal’s decision. The simple fact of the matter is that the Protection visa application form of the First Applicant required him to give complete, correct and up to date information in every detail and that he should understand that if he gave false or misleading information his application could be refused and any later visa issued cancelled, and further that any person not included in this application would not have an automatic right of entry to Australia.

3. At question 13 he was asked whether he had any other relatives who were not in Australia at the time of his application and he had no problem in referring and giving details about his father, mother and brother back in China, but there was a complete omission to mention the son.  That being the case, that fact only came up at the Tribunal hearing and [18] of its Decision Record refers to asking the First Applicant on three occasions why his son was not listed in the Protection visa application.

4. It is evident from the expression of [18] of its Decision Record that there must have been some hesitation by the First Applicant in giving a square, straightforward answer to that question. In the result, the explanation given was that the son was not included “so that his son would not get into trouble” in China.

5. The Tribunal questioned the First Applicant about that explanation, but in the result, as it was entitled to do, stated that it was not satisfied with the response and that the failure to include the son raised a credibility issue.  Nothing in that reasoning strikes me as being legally unreasonable or without an intelligible justification or as in any way being legally illogical or capricious.

6. Accordingly, Ground 4, in my view fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Conclusion

1. The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and their Application filed in this Court is to be dismissed.

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

Date: 26 April 2019