BZV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 2035
•19 November 2019
FEDERAL COURT OF AUSTRALIA
BZV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2035
Appeal from: BZV16 v Minister for Immigration [2019] FCCA 1103 File number(s): NSD 750 of 2019 Judge(s): RARES J Date of judgment: 19 November 2019 Legislation: Migration Act 1958 (Cth) s 36
1951 United Nations Convention relating to the Status of refugees
Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 Date of hearing: 19 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 41 Counsel for the Appellants: The appellants appeared in person Solicitor for the Respondents: Mr R White of Mills Oakley Counsel for the Respondents: Mr T Reilly ORDERS
NSD 750 of 2019 BETWEEN: BZV16
First Appellant
BZX16
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
19 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs.
3.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from a decision of the Federal Circuit Court dismissing the appellants’ claim for constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal made on 30 June 2016 to affirm the decision of the Minister’s delegate not to grant the appellants protection visas; BZV16 v Minister for Immigration [2019] FCCA 1103.
Background
The appellants are husband and wife, and citizens of the People’s Republic of China. They arrived in Australia separately in late 2013, and applied for protection visas in February 2014. The wife’s claim to protection was substantially dependent on the husband’s.
The appellants claimed in their protection visa application that they owned a house and land in Jiangsu Province, and that in about June 2012, the local authorities planned to acquire houses in their village and to construct factories on the sites. They claimed that they engaged in processes to negotiate their moving out and for payment of compensation for their house and land with local officials, but that by early August 2012 they had not been able to arrive at an agreed sum of compensation. They claimed that they had been offered a sum that was much lower, being nearly half what other villagers had been offered, who, they claimed, had bribed local officials. They claimed that an official had demanded 300,000 yuan from them if they were to receive the higher price that other villagers had been given, but that they did not agree to make the payment.
They claimed that one day in August 2012, a group of local officials, the land developer and others arrived at their home, told them that they had to leave immediately, and, when they resisted, started physically to remove the appellants and the husband’s parents. The husband claimed he had resisted that removal and that an incident occurred in which, in the course of his resistance, he was set upon by a thug who attacked him with a knife, causing significant scarring to his face, arms and body, some of which scars are still visible on the husband in Court today. He claimed that he became unconscious, and when he woke up in hospital he learnt that his mother had also been admitted with injuries from the incident. He claimed that after five days he was forced to leave the hospital because he could not afford the fees, and that he then learnt that a number of the pigs on his property had been killed or hurt, and that their house, pigsty and sheepfold had been demolished.
The husband claimed that he wanted his house, his compensation and his dignity back. He claimed that when he complained to the authorities, he was detained by the police for 24 hours and told that they would make his family disappear if he complained again. He claimed that criminals in China who had attacked him were above the law. He claimed that he and others had petitioned the county, city and provincial governments, but without any success.
The proceedings before the delegate
The husband took part in an interview with the delegate in September 2014 and he provided a number of photographs depicting his own and his brother’s injuries and an untranslated hospital discharge certificate for himself. He said that when leaving China, neither he nor his wife had any trouble in obtaining a passport in their own names and departing. He elaborated on his other claims in the interview.
On 13 October 2014, the delegate refused to grant the visas. The delegate accepted that, in August 2012, some form of significant attack had occurred that had left the husband with the scars and other injuries. He accepted that the husband’s brother had also been beaten and suffered facial injuries.
However, the delegate did not accept that the husband had been attacked with a knife and suffered near-fatal injuries because of any attempt to expropriate or resume his land. The delegate found that the appellants had not provided any corroborative evidence of their claims that there had been a forcible expropriation of their homes by the local government authorities. The delegate found the appellants’ account of the claimed attack on the husband, his brother and mother at their home involving about 40 people to be implausible particularly as it was supposed to have occurred in front of so many witnesses in a confined area within their house.
The delegate also found that, had the appellants been of any interest to the authorities in China, they would not have been able to leave China on their own passports on a direct flight to Australia in the way that they did.
Accordingly, the delegate was not satisfied that Australia owed the appellants protection obligations either for the purposes of the Refugees Convention or the complementary protection ground in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
The proceeding in the Tribunal
The appellants sought review of the delegate’s decisions in the Tribunal. In the course of the review the appellants provided originals and translations of documents purporting to come from the local government of their town relating to the acquisition of their property. The Tribunal caused those documents to be checked for authenticity by the Minister’s Department’s document examination unit. On 15 April 2016 that unit provided a report that stated that the quality of the security on each of the documents limited the ability to determine whether it was a legitimately manufactured document and, therefore, the report was inconclusive as to each document’s authenticity. A full unredacted copy of the unit’s report and copy of the originals of the documents that the appellants submitted became an exhibit before the trial judge and counsel for the Minister also provided another copy to the appellants today at the commencement of the hearing of the appeal.
The Tribunal conducted two hearings at which the husband was present for both, but the wife was not able to be present for the second because of illness. The Tribunal formed the view that, as the hearing progressed, the husband embellished, exaggerated and changed his answers according to what he thought was being sought by it.
During the course of the hearing, the Tribunal ascertained that the appellants had a 16 year old son in China whose existence had not been mentioned in their protection visa applications although they had there referred to the husband’s father, mother and brother by name. The Tribunal asked the husband three times why his son had not been listed in the application. It recorded that, eventually, he had said that he had not done so because he did not wish to get his son into trouble. The husband told the Tribunal that he had heard reports that the Chinese government could make it difficult for protection visa applicants. The Tribunal asked how the Chinese government would know what he had included in the protection visa application here and he replied that he did not know, but that friends had told him that it was best to be cautious. The Tribunal was not satisfied with that response and considered that the husband had not mentioned his son in order to conceal his existence in the event that it might impact on the strength of the application for protection, and that this had raised a credibility concern for it.
The Tribunal explored with the husband the circumstances in which the alleged attack on him and other family members had occurred in the course of exploring his claim that the family had been forcibly removed from their land in August 2012. The husband claimed that the incident occurred with 30 to 40 people inside the living room of the family home with 30 or 40 people in attendance. The wife claimed that the incident with the 30 or 40 people had occurred in the kitchen and that her husband had swung a pole at one of his attackers who then produced a knife and attacked him.
He claimed that he later learned from a relative working in the construction team that one of the persons who had been in the demolition team was now the head of the Public Security Bureau (or PSB) in the local area.
The Tribunal did not accept that the incident had occurred as claimed. It accepted that the husband had significant injuries and scarring wounds that matched photographs that he had provided to the delegate earlier, but it pointed out to the husband that the fact of his bearing scars of this nature did not establish by itself how, by whom and in what circumstances, he had sustained the injuries. The Tribunal was not satisfied that the claimed forcible resumption or eviction incident had occurred at all or that the husband’s injuries resulted from such an incident. The Tribunal was not satisfied that the appellants’ house had been demolished or that they had stayed, as they had claimed, in a tent as a consequence thereafter.
The Tribunal also was not satisfied that either appellant had made any complaints to the authorities in China or that the husband had been detained by the police as he had claimed. It noted that the husband had made a new claim, during the course of the Tribunal hearing, that he had been detained a second time by the police, but it was not satisfied that this had occurred, either. It found implausible the husband’s claim that he had written, protesting against the actions of his local council, to the provincial government in Shanghai just before he left China, protesting against the actions of his local town council, in circumstances where he was leaving anyway.
The Tribunal inquired both of the husband and wife as to how they came upon the documents which they had provided to the Tribunal concerning the alleged resumption of their land. The husband explained that he had asked the family to look for corroborative documents after the interview with the delegate. The husband told it that his brother had found the documents in the ruins of their house, at a time roughly before the factories were constructed. The Tribunal noted that the wife had claimed that her brother and sister-in-law had found the documents after the demolition had occurred. She responded to the Tribunal’s expression of surprise that such documents would have survived the demolition of the buildings and that after the delegate’s interview, they had asked the husband’s parents to find the documents. The Tribunal asked the wife whether any factories had been built by the time she had left the village, about 15 months after the alleged demolition of their home. She said they had, roughly, about a year after the demolition.
The Tribunal was not satisfied with the appellants’ explanations as to how they came to be in possession of the documents and did not find plausible that two original documents could be found intact two years after a major demolition of tens of homes had occurred. It noted the unit’s inconclusive finding in respect of the authenticity of the documents and observed that the Department of Foreign Affairs and Trade’s country report on China indicated that fraudulent documents were used in support of visa applications and were relevantly easy to produce. The husband told the Tribunal he was aware of the information from the Department about fraudulent documents. He told the Tribunal that it was well known that in Jiangsu Province that the way in which land acquisition had occurred had been very bad (sic).
The Tribunal found that the staining referred to in the unit’s report was similar in all of the documents, as were the tears physically present on them. It put little weight on the documents based on their appearance, the ease with which document fraud occurred in China, the unit’s inability to be conclusive as to their authenticity and the unlikely explanation that the appellants had provided that the documents had been found some two years after the claimed demolition and after at least some building of factories had begun in the general area.
The Tribunal considered independent country information about land acquisition in China generally and in Jiangsu Province in particular. It noted that in certain parts of China, there were reports of significant incidents of heavy handed and even brutal occurrences concerning land acquisitions. However, it found that there was only one reference to a particular case in Jiangsu Province. It found that, had there been significantly more reports of such incidents in that province, it may have been prepared to view the husband’s evidence in a different light, but that, given its credibility concerns and the fact that incidents in Jiangsu Province were not widely reported, it “did not change its view about the [husband’s] claims”.
The Tribunal dealt next with the appellants’ claims that they had a small snack shop in the village after the demolition and that gangsters had on one occasion smashed dishes and ate snacks without paying, which the police had not investigated. The Tribunal was not satisfied about those claims. It found that while the appellants’ may have had some personal difficulties with particular individuals, it was satisfied that this was a one-off incident and not something that had amounted to persecution for a Convention reason. It was satisfied that, given the passage of time since the incident occurred, the husband would not have such problems were he to return to China.
It also found that the appellants would be able to obtain household registration for their second child, who was born here, were they to return to China.
The Tribunal noted that the husband had told it that he feared that a member of the demolition team, whom he had hurt in resisting the forcible eviction, had been promoted and was now working as the local director of the PSB (the PSB director). He claimed that the PSB director had sent people to harass the husband’s brother and that his son and parents had been detained for 24 hours. He claimed that another person, who had been affected by a forced demolition, had disappeared and that, as a result, he feared going back to China. The husband claimed that, where he came from, everybody had two positions, in explaining how the same person could be working in the demolition team and be promoted to be the PSB director. The Tribunal was not satisfied that a person working on the demolition team would become the PSB director in the district and found such a proposition to be far-fetched and implausible.
In its conclusions, the Tribunal summarised its findings that it was not satisfied that the husband had suffered harm in any incident at the family home when it was demolished, that the house itself was demolished, that the appellants had lived in a tent for a period or that the husband was then arrested, detained or beaten for petitioning public authorities. It acknowledged that the husband had suffered physical injuries, but was not satisfied that he had sustained those in the manner or for the reasons that he claimed. It was not satisfied on the evidence presented that the husband faced a real chance or a real risk of serious or significant harm were he to return to China. It was satisfied that, any difficulties that the husband had with individuals in China, including in respect of the snack food business, which was a one-off incident, would not result in him facing a real risk of serious or a significant harm in the future. Accordingly, it found that Australia did not owe the appellants’ protection obligations under s 36(2)(a) or (aa) of the Act.
The proceeding before the trial judge
The trial judge summarised the appellants’ claims, the decisions of the delegate and of the Tribunal and the four grounds of review which the appellants advanced below and repeated as their grounds of appeal in this Court, namely:
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.
His Honour heard submissions from the husband on each of the grounds. He observed that the husband had not been able to articulate any jurisdictional error on the part of the Tribunal, but, rather, had sought to invoke a merits review to challenge the Tribunal’s findings of fact. The trial judge found that the first ground of review sought to argue with the Tribunal’s rejection of the husband’s claim that a member of the demolition team was also the PSB director. His Honour found that the Tribunal’s rejection of that claim was legally open to it and did not lack an intelligible justification. He also found that it was open to the Tribunal to have regard to the circumstance that the claim had been made late and, in the context of its overall findings, as to the husband’s credibility. He rejected ground 1 for those reasons.
His Honour rejected ground 2 on the basis that he was not satisfied that the Tribunal had dealt with the photographs of the husband’s injuries in an unjustified or illegitimate manner. He found that the Tribunal had accepted that the husband had sustained the injuries depicted in photographs, but had not accepted the claim that those injuries had occurred in relation to any alleged demolition or forcible eviction in respect of the appellants’ home. His Honour found that it was logical for the Tribunal, not having accepted that the incident as claimed had occurred, to find that the husband’s injuries had not occurred in the course of the (now rejected) incident, and, accordingly, that ground 2 did not establish a jurisdictional error.
His Honour also found that ground 3 had not established a jurisdictional error. He noted that the Tribunal had referred to the documents the subject of the unit’s report as having been stained and torn, but that this circumstance did not support the ground of review that the documents had been in pieces and taped or stuck together. His Honour read the unredacted report that included a photocopy of the three pages of the documents and found that there was nothing in it that suggested that the documents were in pieces and stuck together with tape. But the trial judge held that, in any event, the condition of those documents did not affect, in any way, the Tribunal’s reasoning concerning its doubts about their authenticity and the circumstances in which the appellants claimed to have come by them.
His Honour found that ground 4 also failed to establish that the Tribunal’s decision was affected by jurisdictional error. That was because he found that there was nothing in its reasoning about the circumstances in which the husband disclosed that he had a son during the course of its hearing, and its assessment of his explanation for not having revealed that fact earlier to support the contention that it had made a jurisdictional error. In particular, his Honour noted that the Tribunal had evaluated the husband’s response to questions in the protection visa application form, in which he certified that he had given complete, correct and up-to-date information in it in every detail, and understood that if he gave false or misleading information, the application could be refused or a later visa cancelled. His Honour noted that question 13 in the application form had asked the direct question, whether the husband had any other relatives who were not in Australia at the time of his application, and that the husband had had no problem in identifying his parents and brother in China, but had omitted any reference to his son. The trial judge found that the Tribunal’s reasons were not legally unreasonable or without an intelligible justification, legally illogical or capricious and, accordingly, rejected ground 4. The trial judge then dismissed the application with costs.
This appeal
As I have noted, the grounds of appeal are the same as the grounds of review before the trial judge. The Minister did not take any point that these grounds did not address the reasoning of the trial judge and it can be taken that, effectively, they asserted that his Honour had erred in failing to find the errors asserted in the grounds of review below.
The appellants addressed me through an interpreter, but the husband made their substantive submissions. He, again, reiterated that the Tribunal had erred in rejecting his claim that the member of the demolition team had become the PSB director. He said that the Tribunal was not in a position to deny that persons in China could have more than one job.
In my opinion, the trial judge was correct in finding that this ground of review failed.
The husband argued that the Tribunal was wrong to reject his account of the circumstances in which his scarring had occurred. He said that he was a Jehovah’s Witness, that it was a tenet of his religion that he should not lie and that he had not lied.
As I explained to the appellants during the course of argument, it is difficult for persons such as them dealing with a legal proceeding of this kind to identify a jurisdictional error as a separate matter from their understandable concern that the Tribunal had erred in not accepting their claims. However, I explained to them that the role of the Court is to review whether the Tribunal acted in accordance with its statutory obligations, considered all the relevant considerations that the Act required it to, did not take into account irrelevant ones and asked itself the correct question. The Court is not in a position, and does not have the role, to review the correctness of the factual conclusions of an administrative decision maker in the absence of a statute providing for merits review of such a decision.
I see no error in the way in which the Tribunal decided that it was not satisfied that the husband’s injuries had occurred in the alleged incident involving the demolition and eviction from their home, even though it was satisfied that the appellant had sustained the injuries depicted in the photographs. As the trial judge and the Tribunal observed, the genuineness of the husband’s injuries was not in question. The question for the Tribunal was whether it was satisfied that those injuries had occurred in the incident alleged in August 2012 and it found that it was not so satisfied. I see no jurisdictional error in the Tribunal’s reasons for coming to that conclusion.
The husband argued before me that the documents that he provided to the Tribunal smelled of rat urine and that it was impossible for him to have caused them to be in that condition. He contended that, accordingly, his argument that the documents were genuine and had been retrieved from the demolition site should have been accepted. However, there is no reference to rat urine in the Tribunal’s reasons or in the material before it. The unit’s conclusion that the documents exhibited staining as a result of contact with fluids did not include any reference to the nature of those fluids.
It was for the Tribunal to determine, based on the claims, evidence and material before it, whether it accepted that the documents were genuine and had been retrieved by the appellants’ family members in the circumstances they described some two years or more after August 2012 alleged demolition and eviction incident. I am not able to see any jurisdictional error in the way in which the Tribunal arrived at its evaluation that put little weight on the documents, having regard to their appearance, the ease with which document fraud occurred in China, the unit’s inconclusive report as to their authenticity, and the unlikelihood of the appellants’ family being able to retrieve the documents some two years later from what had been a demolition site and was now the site of some potential reconstruction activity. The third ground therefore fails.
The husband argued that he did not want the Chinese government to know about his connection to his son, and that that was why he had not mentioned his son in his protection visa application. He contended that he had not wanted his son to be exposed to the Chinese authorities, and only found out during or subsequent to the Tribunal hearing, that the Chinese government would not ascertain what he had claimed. He contended that the Tribunal should not have used his evidence and failure to disclose his son in the protection visa application adversely to his credibility.
While the Tribunal did not refer at any point to any general approach that it had taken to the assessment of the credibility of the appellants as persons seeking protection, I am not satisfied that the way in which it arrived at its credibility findings, including in relation to the non-disclosure of the son’s existence in the protection visa application, gave rise to a jurisdictional error: see, for example, CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 508 - 509 [37] – [38] per McKerracher, Griffiths and Rangiah JJ. For these reasons, ground 4 fails.
Conclusion
It follows that the appeal must be dismissed with costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 19 November 2019
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