BZZ19 v Minister for Immigration

[2019] FCCA 3302

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZZ19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3302

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424AA, 438

Cases cited:

Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Minister for Immigration v SGLB (2004) 207 ALR 12

Minister for Immigration v Lay Lat (2006) 151 FCR 214

Minister for Immigration v SZIAI [2009] HCA 39

Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3; (2019) 93 ALJR 252

Selvadurai v Minister for Immigration (1994) 34 ALD 347

Shi v Migration Agents Registration Authority [2008] HCA 31

SZGIZ v Minister for Immigration (2013) 212 FCR 235

Applicant: BZZ19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1223 of 2019

Judgment of: Judge Driver

Hearing date: 15 November 2019

Delivered at: Sydney

Delivered on: 15 November 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr T Hillyard of Sparke Helmore

INTERLOCUTORY ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1223 of 2019

BZZ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 29 April 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 8 November 2019. 

3. The applicant, a citizen of China, arrived in Australia on 26 April 2005 on a visitor (subclass 676) visa.[1]  Upon the expiry of his visitor visa, on 9 May 2005 the applicant made an application for a protection (class XA) visa using a name which is anonymised as “MJZ” (2005 application).[2]

   [1] Court Book (CB) 33

   [2] CB 23-26

4. On 4 August 2005, a delegate of the Minister refused the 2005 application, which was affirmed by the (then) Refugee Review Tribunal (RRT) on 31 October 2005.[3]  Following the expiry of the bridging visa associated with the 2005 application, the applicant remained in Australia as an unlawful non-citizen.[4]

   [3] CB 33-46, 48-54

   [4] CB 96

5. On 9 October 2013, the applicant applied for the visa under a different name, “CL” (2013 application).[5]  On 15 December 2014, the delegate refused to grant the applicant the visa.[6]

   [5] CB 55, 66, 79

   [6] CB 95-113

Applicant’s claims

1. The applicant’s claims, as made in the 2005 and 2013 applications, and during the Tribunal proceedings, may be summarised as follows:

   a)the applicant feared persecution in China as he had violated China’s family planning laws, as a consequence of which, he lost his job at a construction company (2005 application);[7]

   b)due to his violation of family planning laws, the government attempted to fine him and force him to undergo a sterilisation procedure.  He then “fled”, and members of his family were taken hostage by the government.  He was subsequently taken into custody when he attempted to rescue them (2013 application);[8]

   c)he escaped from prison, and obtained a false passport in the name “MJZ” from an “underground immigration agent” as it was difficult to get a real passport in China.  He used this passport in the 2005 application (2013 application);[9]

   d)whilst in China, he attended family gatherings of the Local Church with his wife.  He had been financially penalised and his wife and mother had been arrested due to attending the Local Church.  It was common for Local Church adherents to be arrested, and for Local Church congregations to be shut down by the Government.  In 2013, he commenced attending a Local Church congregation in Sydney (2013 application);[10]

   e)in July 2013, he attended the Consulate General of China to obtain a passport and was “questioned exceptionally closely” and “with spite”.  This incident made him fear that he would be persecuted in China on religious grounds, and because the Consulate had kept of copy of his false passport (2013 application);[11] and

   f)while he claimed to have departed China in 2005 for fear of harm for having violated family planning laws, he no longer relied on this claim; and the only reason he feared harm, and the reasons he left China, was his involvement with the Local Church (Tribunal proceedings).[12]

   [7] CB 24-25

   [8] CB 83

   [9] CB 83, 100

   [10] CB 83-84, 100

   [11] CB 84

   [12] CB 218-219, [25], [29]

Tribunal’s proceedings

1. On 16 January 2015, the applicant applied to the RRT (first Tribunal) for review of the delegate’s decision.[13]

   [13] CB 119-125

2. On 14 June 2016, the Tribunal affirmed the decision under review (first Tribunal decision).[14]  The applicant sought judicial review of the first Tribunal decision, and on 28 March 2018 the matter was remitted by consent.[15]

   [14] CB 148-160

   [15] CB 161-162; Federal Circuit Court proceedings no. SYG1771/2016: the Minister conceded that the first Tribunal decision was affected by jurisdictional error as the Tribunal failed to consider the applicant’s claim that he feared harm in China as a result of his possession of a false passport

3. Following remittal, the applicant attended a hearing before the Tribunal (second Tribunal) on 4 March 2019.[16]  “Brother Poh’, an elder of the Local Church in Australia also gave evidence by telephone at the second Tribunal hearing to submit that the applicant was a constant member of the Lidcombe Local Church.[17]

   [16] CB 190-191

   [17] CB 220, [34]

4. On 11 March 2019, the applicant provided to the second Tribunal an additional statement in response to information put to the applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act).[18]

   [18] CB 197-202

5. On 29 April 2019, the second Tribunal affirmed the decision under review.[19]

   [19] CB 209

Tribunal decision

1. At the outset of its decision, the Tribunal found that following the Full Federal Court’s decision in SZGIZ v Minister for Immigration[20] it could only consider the applicant’s claims pursuant to s.36(2)(aa) of the Migration Act.[21]

   [20] (2013) 212 FCR 235

   [21] CB 211, [9]-[11]

2. Owing to his “complete lack of credibility” and inconsistencies in the evidence provided, the Tribunal did not accept the applicant’s claims to have departed China as a result of the difficulties he and his family experienced due to breaching the family planning policies, that he was a genuine adherent of the Local Church, or that he departed China on a false passport.[22]

   [22] CB 221, [41], [55], [61]-[63]

3. The Tribunal did not find the applicant to be a “credible, truthful and reliable witness” and concluded that he had “fabricated claims and concocted evidence to achieve an immigration outcome”.[23]  On the basis of the Tribunal’s comprehensive adverse credibility findings, it rejected the applicant’s claims in their totality.[24]

   [23] CB 221, 230, [41], [71]

   [24] CB 233-234, [88]-[98]

4. The Tribunal found the applicant’s account of the difficulties he and his family experienced in China to contain “numerous inconsistencies and evidence lacking in detail” and that his “vague” and “inconsistent” evidence in respect of this claim cumulatively added to the finding that the applicant was not a credible witness.[25]

   [25] CB 221-223, [43]-[49]

5. The Tribunal recorded that it put a number of matters relating to the 2005 application to the applicant in accordance with s.424AA of the Migration Act, and that the applicant was given until 11 March 2019 to respond to that information.[26] The Tribunal rejected the applicant’s explanation that the differences in the 2005 and 2013 applications and his failure to attend the 2005 Tribunal hearing was because he had paid someone else to complete the 2005 application and he did not know what had been recorded. The Tribunal put to him pursuant to s.424AA of the Migration Act that he was sent an invitation to the 2005 Tribunal hearing from the RRT at the address in Kogarah where he was then resident, but had not attended the hearing.[27]

   [26] CB 210-211, [7]-[8]

   [27] CB 223-224, [50]-[51]

6. The Tribunal also rejected the applicant’s claim that the inconsistent evidence provided at the first Tribunal hearing was caused by illness, and that he did not fully understand the interpreter.  The Tribunal did not accept that this explained the inconsistencies in his evidence, noting that he had never advised the first Tribunal of his illness or difficulties with the interpretation. The Tribunal noted that the audio recording of the first Tribunal hearing revealed that when specifically asked if he understood the interpreter, the applicant confirmed that he did.[28]

   [28] CB 224, [52]

7. The Tribunal found that the applicant’s eight year delay in joining the Local Church in Sydney also undermined his credibility and rejected his explanations for the delay.[29]  The Tribunal accepted that the applicant attended Local Church meetings from 2013, but only for the purpose of strengthening his claims for protection, rather than as a genuine believer.[30]  As the Tribunal did not accept that the applicant had genuine Local Church beliefs, it did not accept that he would attend the Local Church in China, or face any harm in China for practising with the Local Church.[31]

   [29] CB 228-229, [64]-[65]

   [30] CB 233, [87]

   [31] CB 233, [87]

8. The Tribunal did not accept that the applicant faced the claimed difficulties or interrogation at the Chinese Consulate in 2013 or that he feared returning to China due to this incident, as he was unable to provide details about the difficulties he faced in obtaining the genuine passport bearing the name CL, nor did he suggest that he feared harm on this basis until it was put to him by the Tribunal.[32]

   [32] CB 229-230, [69]-[70]

9. On the basis of its overall findings in relation to the applicant’s key claims, the Tribunal was not satisfied that he was owed protections obligations under s.36(2)(aa) of the Migration Act.[33]

   [33] CB 233-234, [89], [93] and [95], [96]-[97]

The present proceedings

1. These proceedings began with a show cause application filed on 17 May 2019.  The applicant continues to rely upon that application.  The grounds in that application are somewhat discursive, but are analysed by the Minister in five categories.  I agree with that categorisation of the applicant’s claims:

   a)it was not open to the Tribunal to rely on the various inconsistencies or lack of detail in the applicant’s evidence in reaching its comprehensive adverse credibility finding (Grounds 1, 2, 6, 8, 10);

   b)the Tribunal did not properly consider: the applicant’s medical evidence regarding his health before the first Tribunal; the applicant’s ability to express himself; or, the passage of time since the events giving rise to his fear of harm (Grounds 3, 5, 6);

   c)the Tribunal did not investigate the applicant’s claims or have evidence to rebut them, before finding that they were not credible (Ground 4);

   d)the Tribunal did not consider the evidence of the Local Church elder, Brother Po (Ground 7); and

   e)the DFAT[34] country information relied upon by the Tribunal did not accurately reflect the reality for Local Church members in China (Ground 9).

   [34] Department of Foreign Affairs and Trade

2. I have before me as evidence a further amended court book in two volumes filed on 6 November 2019. 

3. The applicant filed an affidavit with his show cause application, which I received as a submission. 

4. I invited oral submissions from the applicant this afternoon.  He indicated briefly that he was aggrieved by the Tribunal decision, because he felt all of the material bearing upon his case was disregarded.  I invited the applicant to comment if he wished on the Minister’s written submissions.  He declined to do so.  Following a brief further discussion about the Tribunal’s decision from my perspective, the applicant declined to make any further submissions.  Finally, after hearing from the Minister’s solicitor, I invited the applicant to reply.  He indicated that he considered it pointless to say anything further. 

5. In my view, there is no legal argument available to the applicant pointing to any jurisdictional error. The Tribunal’s decision was based upon comprehensive and detailed adverse credibility findings. That is not entirely surprising given the very large gap in time between the first and second protection visa applications by the applicant and his use of multiple identities. As I put to the applicant, the conclusions reached by the Tribunal were open to it on the material before it. Further, the process followed by the Tribunal was fair and in accordance with the requirements of the Migration Act.

6. I agree with the Minister’s analysis of the issues derived from the show cause application. 

7. In respect of contention (a), it was plainly open to the Tribunal to assess the applicant’s credibility by reference to the inconsistencies in the applicant’s evidence over time, and particularly the inconsistency between the 2005 application and the 2013 application in relation to the basis on which he sought to invoke Australia’s protection obligations.  Whilst credibility findings are not immune from challenge, the considerable inconsistencies relied on by the Tribunal were logically probative to the issue of the applicant’s credibility, and there was no error in the Tribunal’s adverse conclusions in light of those inconsistencies.[35]

   [35] Kopalapillai v Minister for Immigration (1998) 86 FCR 547

8. In respect of contention (b), the Tribunal did have regard to the applicant’s claimed ill health and difficulties with the interpreter before the first Tribunal hearing as a basis for his inconsistent evidence, as well as the impact of the passage of time on his ability to accurately recall events.[36]  However, the Tribunal was not satisfied that these matters provided an adequate explanation for the significant inconsistencies in the applicant’s evidence.  The Tribunal’s conclusion in this regard was open to it on the evidence and material before it, and for the reasons it gave.

   [36] CB 230-231, [72]-[73], [75]

9. By contention (c) the applicant asserts that the Tribunal did not investigate his claims or have evidence to rebut them, before finding that he was not a credible witness.  It is well established that the Tribunal is not required to possess rebutting evidence before holding that a particular assertion is not made out.[37]  Nor is there a general duty on the Tribunal to make inquiries to ascertain the veracity of an applicant’s claims. To the contrary, it was for the applicant to satisfy the Tribunal as to his claims.[38]

   [37] Selvadurai v Minister for Immigration (1994) 34 ALD 347, 348

   [38] Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v SZIAI [2009] HCA 39 at [25]; Minister for Immigration v Lay Lat (2006) 151 FCR 214

10. Contention (d) is without substance.  The Tribunal considered the evidence provided by “Brother Poh” at the hearing, but found that this evidence failed to overcome the serious difficulties that the Tribunal had with the applicant’s evidence.[39]  That balancing exercise was ultimately a question of the weight to which the Tribunal gave particular evidence, which was a matter within jurisdiction for the Tribunal.[40]

    [39] CB 231, [77]

    [40] Shi v Migration Agents Registration Authority [2008] HCA 31 at [151] per Crennan J

11. Finally, in respect of contention (e), there is nothing to suggest that the Tribunal relied on country information that was in any way defective. In any event, this contention misapprehends the nature of the Tribunal’s findings. The Tribunal rejected wholesale the applicant’s claims to have been involved in the Local Church on the basis that his claims were not credible. The question as to the conditions in China for Local Church adherents would only arise if the Tribunal had been satisfied that the applicant was an adherent.

Section 438 non-disclosure certificates

1. The Minister also properly raised the question of two non-disclosure certificates issued by the Minister’s Department to the Tribunal.  I agree with the Minister’s submissions concerning those certificates. 

2. Certificates were issued pursuant to s.438 of the Migration Act on 15 December 2014[41] (first certificate) and 21 January 2015[42] (second certificate) in respect of documents in the applicant’s 2013 protection visa application file.[43]

   [41] On Department file: CLF2013/248943; CB 114

   [42] On Department file: CLF2005/037802; CB 126

   [43] CB 114-118, 126-127

3. In Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration,[44] the High Court considered various certificates issued by the Minister’s Department under s.438 of the Migration Act and what constituted jurisdictional error in the event of non-disclosure to applicants. The High Court concluded at [38] that the mere non-disclosure of the existence of the s.438 certificate would not, of itself, constitute a jurisdictional error. At [38], a majority of the High Court held:

   Because procedural fairness requires disclosure of the fact of notification, nondisclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision.

   [44] [2019] HCA 3; (2019) 93 ALJR 252

The first certificate

1. The first certificate purported to cover folios 46 to 48, which was a “Document Examination Report” relating to whether the applicant’s passport was genuine.  The purported basis on which the first certificate was issued was that the folios related to the “internal business” of the Minister’s Department.  The first certificate was not validly issued.

2. No jurisdictional error arose in the present case in circumstances where the Tribunal disclosed the existence of the first certificate to the applicant at the second Tribunal hearing and advised him of its contents.  The Tribunal also advised the applicant that it accepted his current claim to his identity.[45]  Given that the applicant was aware of the certificate and the Tribunal accepted his identity was as claimed (and reflected in his passport), it cannot be said that the applicant has suffered any practical injustice.

   [45] CB 213 [18], [38]

The second certificate

1. The second certificate purported to cover folio 53, which is internal Departmental correspondence in which a Departmental officer requested a number of files, including the applicant’s 2005 application.  The purported basis on which the second certificate was issued was that the folio related to the “internal business” of the Minister’s Department.

2. The second certificate was not validly issued.  However, the Tribunal disclosed the existence of the second certificate to the applicant.[46]  In circumstances where the internal Departmental correspondence had no relevance to any issue on review by the Tribunal, it cannot be established that the existence of the second certificate and any non-disclosure of its contents gave rise to any “practical injustice” suffered by the applicant. [47]  Accordingly, no jurisdictional error arises.

   [46] CB 213 [18]

   [47] SZMTA at [38]

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

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

Associate: 

Date:         22 November 2019