Caq18 v Minister for Home Affairs
[2018] FCCA 2302
•20 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAQ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2302 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to properly consider the applicant’s post-hearing submissions – whether the Tribunal failed to consider integers of the applicant’s claims – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 414, 476 |
| Applicant: | CAQ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1132 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 20 August 2018 |
| Date of Last Submission: | 20 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2018 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Ms E Knight Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1132 of 2018
| CAQ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 March 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant claimed to fear harm by reason his father being a Falun Gong practitioner and his father now being a person who resides in Canada. The applicant also claimed to fear harm by reason of his family farm having been sold and having no family members in China. The applicant also claims to fear harm from the authorities.
On 7 September 2012, the applicant arrived in Australia on a TU 573 student visa which was then cancelled on 10 April 2014. The applicant then remained unlawfully in Australia until he was located on 10 April 2014. The applicant’s application for a protection visa was not made until 3 June 2014. On 23 October 2015, the delegate found the applicant failed to meet the criteria for the grant of a Protection (Class XA) visa.
The Tribunal
On 19 November 2015, the applicant applied to the Tribunal for a review. By letter dated 21 December 2017, the applicant was invited to attend a hearing on 13 February 2018.
The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. Following the hearing on 21 February 2018, the Tribunal wrote to the applicant under s 424A of the Act, inviting the applicant’s comment or response in respect of clear particulars provided concerning adverse information impacting on whether the applicant was a witness of truth and by reason of which the Tribunal may affirm the decision under review. The applicant was also invited to provide information in respect of his father’s alleged Canadian visa decision. On 7 March 2018, a response was provided on behalf of the applicant by the migration agent representing the applicant.
The Tribunal in its reasons identified the background to the application for review and summarised the applicant’s claims and evidence. The Tribunal referred to the applicant identifying his last address in China as being a place where he lived with his mother, brother, wife and child and where he worked as a farmer.
The Tribunal raised with the applicant that he only applied for a protection visa after he was found by compliance and at the compliance interview the applicant did not say that he would be investigated because of his father or that he feared returning to China. The Tribunal raised with the applicant that he had informed the compliance officers that he wanted to migrate to Australia and that he initially wanted to study but did not have the money.
The Tribunal identified the relevant law and accepted the applicant’s father had been recognised by Canadian authorities as a refugee. The Tribunal however, had concerns as to the veracity of the applicant’s evidence. The Tribunal identified the applicant’s evidence changing over time. The Tribunal also took into account the answers given by the applicant at the compliance interview and the delay in the applicant’s application for a protection visa.
The Tribunal found the applicant was not a reliable witness. The Tribunal did not accept the applicant’s evidence about key aspects of his claims being based on personal or actual experiences and found the applicant had fabricated the claims to create a claim for protection. The Tribunal did not accept there was a real chance the applicant would suffer serious harm on return to China for reasons of having been linked to or his having an imputed connection to his father’s case or any imputed Falun Gong or anti-government opinion or for any other related or for any other reason.
The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
The Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant will suffer significant harm.
The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
These proceedings were commenced on 23 April 2018. On 14 May 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the explanation given by the Court. The applicant did not put any submissions when invited to do so from the bar table other than to maintain that what he had said in writing was correct.
The grounds
The applicant’s affidavit mirrored the grounds identified in the application, which are relevantly as follows:
Ground 1:
The Tribunal failed to undertake any process of weighing on my response in the post-hearing submission made by my migration agent on my behalf, and I believe my response to the concern about the discovery of Falun Gong materials at home, was substantial and consequential; as such, the Tribunal constructively failed to exercise its jurisdiction by not dealing with such response in my post hearing submission; thereby constituting a jurisdictional error.
As stated in Paragraph 23 of the AAT decision record, The Tribunal raised three concerns to me in writing after the conclusion of the hearing. Apparently, the Tribunal had regard to and gave its thought processes to my response in the post hearing submission to concerns in relating to the Movement records and the conversation between me and compliance on 15-may-2014 and how often authorities came to my home.
However, the Tribunal did not expressly refer to the post hearing explanation with respect to whether Falungong materials were found at my home; in other words, the Tribunal did not give due regard to my contention as statutory provisions required, nor did the Tribunal expressively state the reason or legal ground as to why it drew an inference unfavourable to the credibility of this claim.
In Paragraph 46, the Tribunal only referred to the concern it had raised at the hearing with me about failing to mention such evidence in my written statement, but not to my post hearing response. Given that I took the opportunity in the department's interview and raised this claim to the decision maker, therefore, it was relevant to the significance the Tribunal would have referred to my post hearing response had it in fact considered it.
Therefore, in my assertion, the Tribunal did not undertake the review the Tribunal was obliged to undertake by s.414(1) of the Act.
Ground 2:
From my understanding, significant economic hardship that threatens my capacity to subsist and denial of capacity to earn a livelihood of any kind, which the denial threatens my capacity to subsist, would fall within the definition of Significant Harm specified in s36(2A) of the Migration Act, 1958 and; If the Tribunal accepted, that I'd be subjected of significant harm upon my return to China and I'd meet the criteria prescribed by s 36(2)(aa) of the Act.
I also acknowledged that the principles Robertson J identified and applied in Minister for Immigration and Citizenship v SZRKT. In that case, his Honour said that whether or not a Tribunal’s not considering information will result in the Tribunal making a jurisdictional error turns on the importance of the information to the exercise of the Tribunal's jurisdiction.
With that being the case, I believe the Tribunal failed to assess or deal with the substantial and consequential evidence and facts associated with my claims, which are as follows:
- My mother and brother have been granted permanent residency of Canada. The evidence of their Canadian permanent Residency was submitted to the department (Folio 76-87) prior to the interview with the decision maker.
- I have been absent from China since September 2012.
- Our farming land has been taken away by the local authority because all of my family members are no longer in China. This fact is self-evident and is substantial to my review application.
But, in Paragraph 49 of AAT decision record, the Tribunal reached its findings, stating: “Given the applicant's propensity to fabricate his claims, neither does the Tribunal accept that the applicant is now telling the Tribunal the Truth when he states that his wife wants to divorce him and that the authorities have taken his house and land and That because he has a rural hukou, he will be unable to survive in China…”
Apparently; the Tribunal engaged in a process of reasoning of my claimed fear without having considered the foregoing facts, and therefore, the absence of the evaluation of the evidence I submitted to the department, the Tribunal's inevitably failed to carry on its statutory task, which can only signify a constructive failure to exercise jurisdiction under s414(1) of the Migration Act.
I have enclosed a copy of the post-hearing submission and AAT decision record in this application for judicial review.
Ground 1
In relation to ground 1, the Tribunal did give reasons addressing the applicant’s claim as to the discovery of Falun Gong materials at his home. The Tribunal identified that this was a claim that had not been raised in his initial claims. The Tribunal gave detailed and logical reasons in support of the adverse credibility findings and that included the information that the applicant had provided at the compliance interview, as well as the delay in the applicant’s application for protection, and on these grounds alone the adverse credibility findings cannot be said to be illogical, irrational or unreasonable.
The Tribunal addressed the applicant’s claims and made adverse findings that were open to the Tribunal for the reasons given by the Tribunal as summarised above. The adverse findings cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the adverse findings does not identify any relevant legal error.
It is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s response to the s 424A letter, and contrary to the applicant’s assertion, the Tribunal gave detailed reasons in support of the adverse credibility findings, as summarised above. There is no substance in the contention that the Tribunal did not comply with its statutory obligations in the conduct of the review. Nor is there any substance in the assertion that the Tribunal failed to undertake the review required under s 414 of the Act.
The Tribunal’s decision sets out, at paragraph 24, the post-hearing submission including considering the applicant’s explanation as to why he had not mentioned the Falun Gong material found in his home. The submission did not explain the inconsistency but rather contended that the Tribunal ought not to have been concerned about the inconsistency. The inconsistency was not immaterial or trivial. The Tribunal’s adverse finding in relation to the applicant’s claims including rejecting the applicant’s claims in respect of the Falun Gong material was clearly open. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, the Tribunal clearly identified the applicant’s claimed fear of ability to subsist but having found the applicant was not a reliable witness, did not accept the applicant’s claim that the farming land had been taken away. The Tribunal’s reasons reflect dispositive findings in respect of the whole of the applicant’s claims. It was not necessary for the Tribunal to refer to the applicant’s mother and brother having obtained residency in Canada. It was not necessary for the Tribunal to make any such finding and nor was it necessary to do so in relation to the applicant’s ability to subsist in China. The Tribunal did not accept the applicant would be unable to work or that his wife, who resides in China, had divorced him.
Ground 2, in substance, reflects a disagreement with the adverse findings by the Tribunal that were open to the Tribunal and cannot be said to lack an evident and intelligible justification. There was no failure by the Tribunal to properly conduct the review as alleged in ground 2. No jurisdictional error in ground 2 is made out.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 20 September 2018
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