CAL16 v Minister for Immigration

[2017] FCCA 1866

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAL16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1866

Catchwords:
MIGRATION – Application for protection visas – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by taking into account an irrelevant consideration – whether the Tribunal’s decision was affected by unreasonableness – whether the Tribunal erred by failing to consider risk of harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

First Applicant: CAL16

Second Applicant: CAN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2011 of 2016

Judgment of: Judge Smith

Hearing date: 10 July 2017

Date of Last Submission: 10 July 2017

Delivered at: Sydney

Delivered on: 10 July 2017

REPRESENTATION

The first applicant appeared in person.

Solicitors for the Respondents: Mr A. Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2011 of 2016

CAL16

First Applicant

CAN16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicants in this case are husband and wife who applied for protection visas on 17 December 2013 and seek review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate not to grant them those visas.  As the first applicant, who is the husband, was the only one who made substantive claims in support of the visa application, I will refer to him as the applicant. 

Background

1. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 14 January 2007.  His wife had already come to Australia accompanying their son who was here as a student.  On 13 February 2007, the applicant lodged an application for a protection visa which was unsuccessful.  The applicant applied unsuccessfully for merits review of that decision and also for judicial review of the Tribunal’s decision, but was unsuccessful again. 

2. The applicant remained unlawfully in Australia for some time and then on 17 December 2013, lodged a further application for a protection visa.  That application was made in light of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 and was based solely upon the contention that he satisfied the criteria in sub-s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). 

3. The applicant claimed that he ran a nursery business in China and that, when he was not paid by the local government for a supply of young tea trees, he organised a sit-in protest.  As a result of his involvement in that protest, the applicant claimed that he was arrested and detained for three weeks.  After that, the applicant continued to seek payment. He was advised by the municipal government that the Public Security Bureau (PSB) considered that he was an anti-government activist and was going to take action against him.  The applicant then fled China in January 2007 on a false passport. 

4. The applicant claimed that the PSB continued to harass his youngest son who had remained in China; told the applicant’s business partner that the applicant had in fact been paid the money owed; and that he had fled China with the money.  Both the business partner and the PSB harassed his son who then fled to Australia on a false passport. 

5. After arriving in Australia, the applicant said that he converted to Christianity. 

6. On 21 May 2014, a delegate of the Minister made a decision to refuse to grant the applicants protection visas and the applicants applied to the Refugee Review Tribunal[1] for review of that decision.  The applicant attended a hearing conducted by the Tribunal on 3 November 2015.  His wife did not attend as she was not well. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

7. At the Tribunal hearing, the applicant expanded upon his claims and gave evidence that he was also scared because he owed people money.  He also gave evidence that his older son who had been studying in Australia returned to China at the end of 2006 in order to sign papers and to repay the applicant’s debts.  The applicant said that he was accused of supplying fake tea trees and feared harm for that reason.

8. In addition, the applicant said that his younger son had come to Australia to work in order to support his own young children. 

9. The Tribunal made its decision on 8 July 2016. 

Tribunal’s decision

1. The Tribunal noted that the applicant was not seeking protection on grounds of religion and so did not consider that claim. 

2. The Tribunal accepted the applicant’s claims about his failed business transaction and also that the recipient did not consider that the seedlings were of the requisite kind and so did not pay.  It accepted that the applicant approached the government agencies who told him that it was a private matter and not a dispute between two units and therefore did not assist.

3. The Tribunal noted that the applicant had said that they were told that a lawsuit would not succeed and therefore, the business could not continue which resulted in the applicant owing money and losing face. However, the Tribunal did not accept the applicant’s remaining claims as credible and gave a number of reasons for that conclusion. Primarily, its reasons were that the evidence given by the applicant was inconsistent and, for that reason, the Tribunal did not accept that his claims were credible. The Tribunal rejected the balance of the applicant’s claims and found that the applicant did not satisfy the criteria for the grant of a protection visa found in sub-s.36(2)(aa) of the Act and so affirmed the decision not to grant the applicant or his wife a visa.

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision.  In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error.  In his application, there are three grounds. 

2. The applicant appeared at the hearing today unrepresented and said that he spoke also on behalf of the second applicant.  He submitted that what he said to the Tribunal was true.  When I informed him that that was not relevant to the Court’s power, the applicant made no further submission.  In particular, the applicant did not address the grounds in the application because he said he had never read them and did not know what they were.  The applicant said they had been prepared by a migration agent.  The applicant had filed no written submissions in support of his application.

3. For those reasons, I will deal with the application simply on the basis of the grounds as they appear in the application for review. 

4. In the first ground, the applicant claims that the Tribunal made one of the errors identified in the majority judgments in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (S395/2002). This error was said to have arisen in the finding by the Tribunal that the applicant took no steps to stop his wife from returning to China: Tribunal’s reasons at [58]. In S395/2002, the majority found that the Tribunal had erred by determining the claim on the basis that the harm feared could be avoided by the applicants if they acted discreetly (see at 490, [43] per McHugh and Kirby JJ; and 503, [88] per Gummow and Hayne JJ). However, the Tribunal made no such finding here.

5. The finding impugned by the applicant is at [58] where the Tribunal held:

   The primary applicant told the Tribunal that his wife was planning to return to China with their older son around Christmas 2006.  It was her decision to remain in Australia when she found out the primary applicant was coming to Australia.  He did not tell her or their older son not to return.  The Tribunal does not accept that if there were such a risk of harm to him from November or early December that he had left his home, he would not have told his wife not to return from the safety of Australia.

   …

   The Tribunal’s point in this paragraph was simply that it was inconsistent for the applicant to say on the one hand, that he was in fear of harm and yet, on the other, not to warn his wife about the danger of such harm.  That reasoning was basic common-sense.  The Tribunal did not make any finding about the wife’s ability to avoid harm by acting discreetly.  In light of that, the issues that arose in S395/2002 do not arise in the circumstances of this case, and it is unnecessary to examine any of the nuances that arise from the plurality decisions there (see, for example, Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45). The first ground is rejected.

6. The second ground appears, at first, to be an amalgamation of a number of different complaints.  The principal complaint is that the Tribunal did not consider the applicant’s claim that he would be detained as a result of his involvement in the sit-down protest.  However, it is clear that the Tribunal did consider that claim and rejected it.  At [66] of its reasons, the Tribunal stated:

   The Tribunal does not accept … that the applicant organised and took place in a protest outside the Sichuan Agricultural Bureau that he was taken into custody and detained in Sichuan and thereafter was told that the Sichuan police or PSB had decided to take immediate measures against him …

   Having not accepted that the applicant had been involved in any protests, the Tribunal was not then required to consider what might result from any such involvement.  That complaint, therefore, must fail.

7. The second complaint in ground 2 is that the Tribunal’s reason for rejecting significant aspects of the applicant’s claims were not open to it on the material.  I take this to refer to the rejection by the Tribunal of the applicant’s claims that he was involved in protests.  The Tribunal gave a number of reasons for finding, on the whole, that the applicant’s claims were not credible.  Amongst those, was a reason specifically relating to the claimed protests (see [62]).  In brief, the Tribunal found the applicant’s evidence about the protests was inconsistent.  It was correct about that.

8. The applicant’s evidence differed not only about the number of people involved in the protest but also the timing of the protest.  The inference drawn by the Tribunal from that inconsistency was that the claim was not credible.  That inference was open on the material in the sense that a logical inference is able to be drawn from inconsistent evidence to the effect that neither version of events is, in fact, accurate or truthful.  For that reason, the complaint must be rejected.  If, contrary to the view that I have taken, the complaint is a broader one and addressed to all of the Tribunal’s findings about the applicant’s evidence, then in my view, the same reasoning applies.

9. As I have noted, the Tribunal’s reasons for finding the applicant’s claims were not credible, were based largely upon its conclusions that the applicant’s evidence was inconsistent.  Those findings, and the inferences drawn from them, were logically open on the material and, for that reason, the second ground must fail. 

10. The third ground is that the Tribunal failed to assess the applicant’s involvement with the local Christian Church in terms of underground religion.  The ground goes on to say that the claim was asserted before the Tribunal that the religion belief made the applicant at risk of persecution, and that the applicant is a refugee as defined in Article 1 of the Convention[2]. Thus, the applicant should be offered refugee protection.

    [2] The Convention Relating to the Status of Refugees, 1951 as amended by the Protocol Relating to the Status of Refugees, 1967.

11. As a preliminary matter, I note that the last aspect of this ground has no real substance. First, it is not a matter for this Court to determine whether or not the applicant is a refugee. It is certainly outside the bounds of the Court’s power to grant refugee protection. That is a matter for the Executive. Secondly, and in any event, as I have observed above, the only ground upon which the applicants based their claim for protection, was upon the satisfaction of sub-s.36(2)(aa) of the Act, which does not relate to the Refugees Convention but to protection obligations said to arise under other Conventions.

12. Turning to the substance of the ground, there are two difficulties for the applicant.  The first is that, on the evidence before the Court, it is clear that the applicant never claimed to have belonged to an underground religion in such terms: rather, he claimed to have converted to Christianity upon arrival in Australia.  This was in light of the psychological difficulties that he was undergoing in connection with the harm that he feared towards China and connected to his son.  Secondly, and more critically, at the Tribunal hearing, the applicant expressly disavowed any claim relying on his religion.  In light of that disavowal, the Tribunal was under no obligation to consider any claim based upon any religious belief held by the applicant.  For those reasons, the third ground is not made. 

Conclusion

1. There is no jurisdiction error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     9 August 2017