CCX15 v Minister for Immigration

[2016] FCCA 1307

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCX15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1307

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the applicants had a genuine hearing before the Tribunal – bias – whether bias properly proven – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa) & 476

Cases cited:
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 353

First Applicant: CCX15

Second Applicant: CCY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2829 of 2015

Judgment of: Judge Street

Hearing date: 31 May 2016

Date of Last Submission: 31 May 2016

Delivered at: Sydney

Delivered on: 31 May 2016

REPRESENTATION

The applicants appeared in person

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicants pay the costs of the first respondent fixed in the amount of $5300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2829 of 2015

CCX15

First Applicant

CCY15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 24 September 2015 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of China and their claims were assessed against that country.

2. The first applicant arrived in Australia on a Class TR subclass 676 visa on 11 September 2007.  The first applicant lodged an application for protection on 25 October 2007, which was refused on 11 January 2008.  The Refugee Review Tribunal affirmed the decision on 10 June 2008.  On 18 March 2009 an application to the Federal Magistrates Court for review was dismissed. 

3. On 16 April 2009 the first applicant became an unlawful person in Australia.  On 17 April 2009 the first applicant lodged an application for an extension of time to appeal the judgment of the Federal Magistrates Court.  On 7 August 2009 the application for an appeal was dismissed by the Full Court of the Federal Court.

4. The first applicant remained then an unlawful person in Australia until 25 November 2013, when the first applicant lodged a second protection visa application.

5. The second applicant arrived in Australia on 25 March 2007 on a student guardian visa.  The second applicant lodged an application for protection on 30 December 2008 which was refused on 8 April 2009, and that decision was affirmed by the Tribunal on 28 July 2009.

6. The second applicant joined in a joint second application for protection visas with her husband, the first applicant, on 25 November 2013 on the grounds of complementary protection consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 353.

7. Before the Tribunal, the applicants maintained their claims of harm based on their prior protection applications, as well as a claim of fearing harm by reason of their practice of I-Kuan Tao (also referred to as Yi Guandao).  The Tribunal summarised the protection claims made by the first applicant and the second applicant in their original visa applications as well as identifying the statement made in support of the current application for protection concerning the practice of I-Kuan Tao.

8. The Tribunal reasons record that there was an initial issue in relation to the interpreter in respect of the Fuqing dialect.  The Tribunal identifies the steps taken to provide a further interpreter. The second applicant expressed some difficulty however the Tribunal was of the view that the second applicant understood the communication and was communicating adequately in Mandarin through the interpreter based on her responses to questioning.  The Tribunal expressly records that it was satisfied that the second named applicant was able to communicate satisfactorily with the Mandarin interpreter and that when there were interpretation issues, those issues were clarified.

9. The Tribunal also expressly referred to the second applicant not being educated or literate and took that into account in relation to the assessment of the second applicant’s credibility.  The Tribunal found that those limitations did not explain the very significant deficiencies in the second applicant’s evidence.

10. The Tribunal found that the second applicant was not a credible or truthful witness in relation to aspects of her claims.  Specifically, the Tribunal was not satisfied that the second applicant was detained, questioned or harmed as a result of looking after a child for a couple who were of adverse interest to the authorities. 

11. The Tribunal was not satisfied the second applicant was forced into a sexual relationship with a police officer.  The Tribunal was not satisfied the second applicant was involved in circulating a petition with her involvement becoming known to authorities causing her to be of adverse interest to the authorities as a result. 

12. The Tribunal was not satisfied that there was a real risk that the second applicant would face significant harm for any of the reasons claimed as part of her first visa application.

13. The Tribunal went on to identify findings in relation to the first applicant’s claims for protection in the first application then summarised the reasons for concern in relation to the credibility of the first applicant.  The Tribunal records that it had raised with the first applicant the problems with his evidence and the difficulty in accepting his claims to be true.

14. The Tribunal accepted that the first applicant was a farmer and that there was a spread of pollution that affected his farm and that animals died.  The Tribunal was not, however, satisfied that the applicant organised a protest causing him and others to be arrested. 

15. The Tribunal was not satisfied the first applicant was detained, harmed or interrogated.  The Tribunal was not satisfied the first applicant was the subject of reporting requirements after release from detention or was the subject of ongoing adverse interest from authorities. The Tribunal was not satisfied that the first applicant left China illegally. 

16. The Tribunal was not satisfied that there was a real risk of significant harm to the first applicant based on the claims that he made in his first protection application.  Further, the Tribunal found that the fact that animals had died as a result of pollution was not a basis upon which there was a real risk of significant harm to the first applicant.

17. The Tribunal then turned in detail to the applicants’ claims as to the practice of I-Kuan Tao.  The Tribunal provided detailed reasons for its finding that the evidence of the first applicant was evasive and inconsistent in his terms of practice of I-Kuan Tao between 2010 and 2013 and that his claims were contradicted by his wife.

18. It was under those circumstances that the Tribunal found that it was not satisfied the applicants practiced I-Kuan Tao before October 2013 or that the first applicant’s cousin had been detained and photographs sent by the first applicant had been discovered by authorities or that authorities in China are pursuing the applicants or the applicant’s family in China.

19. The Tribunal turned to the question of what the applicants would do on return to China, and the Tribunal took into account the applicants’ earlier protection claims and made the credibility findings.  The Tribunal formed the view that the applicants had falsely claimed that they commenced I-Kuan Tao in 2010.  The Tribunal found the most likely reason for this fabrication was to avoid the inference that the practice of I-Kuan Tao commenced in October 2013, a month before the current application for the protection visa, and that it was taken up for the purpose of providing a foundation for a claim for protection rather than as a result of any genuine belief. 

20. The Tribunal noted that these concerns were put to the applicants during the hearing.  The Tribunal did not accept the applicants’ assertions that they were genuine practitioners.  The Tribunal found that it was, in the circumstances, including the time of the conversion, an opportunistic attempt to provide a foundation for protection in Australia.  The Tribunal was of the view that the practising of I-Kuan Tao had been done for the purpose of furthering their claim for protection.  The Tribunal was not satisfied the applicants had any genuine commitment to the practice of I-Kuan Tao and was not satisfied that they would continue to be practitioners should they return to China. 

21. The Tribunal was not satisfied that the Chinese authorities would have any knowledge of the applicants’ practice of I-Kuan Tao. The Tribunal was not satisfied that there was any basis upon which the applicants would face a real risk of significant harm based on the practice of I-Kuan Tao in China or the Chinese authorities coming to learn of their practice in Australia.  It was in those circumstances that the Tribunal concluded that it was not satisfied there was any evidence before it to indicate that either of the applicants face a real risk of significant harm for any reason in addition to the reasons claimed. The Tribunal was not satisfied that there is a real risk that the first applicant would suffer significant harm for the reasons claimed in his first protection visa application or due to the practice of I-Kuan Tao.

22. The Tribunal found that it was not satisfied in relation to the second applicant, that there were substantial grounds for believing that as a necessary and foreseeable consequence of the second applicant being removed from Australia to China there is a real risk that she will suffer significant harm for the reasons claimed in her first protection visa application or due to the practice of I-Kuan Tao. It was in those circumstances that the Tribunal concluded that the applicants did not satisfy the criteria for complementary protection under s.36(2)(aa) and affirmed the decision under review.

23. On 26 November 2015, a Registrar of the court made orders providing an opportunity for the applicants to file an amended application, an affidavit and some submissions.  No such documents were filed.  The grounds in the application were identified in an attachment under two headings as follows:

    1. I could not accept DIBP and Migration & Refugee Division's decisions as I don't think it is fair and reasonable, and a through consideration has been carefully given to our entire situation.

    2 Migration & Refugee Division's conclusion for my wife's credibility is unacceptable and made us stressful as Migration & Refugee Division fail to consider my wife's education background, her poor memory and her inability of handling any other language except Fuqing dialog.

    3. Migration & Refugee Division 's decision shows unclear reason why and how inconsistence existed in our statements and explanation. I don't think we have made any false statements on our background. If there is anything wrong or inconsistence occurred in our explanation, it must be related to the result of our stress, poor ability of expression during the hearing.

    4. I don't think Migration & Refugee Division has given a significant understanding and consideration in our current claim of Yi Guan Dao's faith and loyal practice and its implication on us if we return to origin. We have strong feeling that the member over looked our background by taking so many questions in our previous application for protection to locate the errors and abused our answers according to our poor memories and this challenge made us a real upset and nervous through out the hearing.

    5. Migration & Refugee Division failed to properly consider our commitments to our faith and ignored the evidence provided, including our formal Taoist Baptising Cards in Australia.

    6. Migration & Refugee Division failed to give a fair consideration to our honest explanations on questions and doubts, giving a wrong interpretation of our credibility.

    7. Migration & Refugee Division failed to gave us a chance making a comment to the outstanding questions off the hearing. We are so disappointed and stressful in such dominant attitude in review our case and couldn't accept Migration & Refugee Division's reckless decision.

    The Grounds of the Application are:

    1. I and my wife are both Chinese nationals. After entering Australia, we pursued our faith of Yi Guandao and kept on practicing it. We have fear to be persecuted due to our faith if we have been forced to return to origin as our faith is outlawed in China and people who pursuing our faith have been targeted by Chinese government as evil cult.

    2. As committed Yi Guandao pursuers, we treat our faith as spiritual pillar and can not give it up for any threats or repression. Our risk and danger is imminent and unavoidable in origin as our fellow practitioners there are targeted by the authority and fell into victims.

    3. For sake of my religious freedom, we apply for protection by Australian government and wish our new claim and situation can be reconsidered.

24. At the commencement of the hearing, the Court explained to the applicants that the nature of the hearing was to determine whether or not the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness.  The Court explained that, in summary, this meant that the Court had to be satisfied that the decision was either unlawful, or that the decision was unfair. The applicants confirmed that they understood the nature of the hearing as explained by the Court.  The Court proceeded to explain that it would identify the evidence, and then hear submissions from the applicants, and then submissions from the first respondent’s solicitor and then submissions from the applicants. 

25. The first applicant raised from the bar table that his wife had limited understanding in alleging that the hearing was unfair.  It is apparent that the Tribunal took into account the second applicant’s limited understanding and made an adverse finding in relation to the credit of the second applicant that was open on the material before the Tribunal.  Further, it is apparent that the Tribunal took into account the concerns in relation to the interpreter and on the material before this Court and in light of the Tribunal’s reasons, the Court is satisfied that the applicants had a real and fair hearing.

26. By letter dated 22 July 2015, the applicants were invited to attend the hearing on 17 September 2015 before the Tribunal.  The applicants appeared on that day to give evidence and present arguments and the hearing time appeared to be in excess of three hours from the material before the Court.  The first applicant complained about being asked questions about his earlier visa application.  The fact that the first applicant was seeking to maintain claims relating to that first visa application were a proper basis upon which the Tribunal was entitled to explore the earlier claims with the applicants.  It was a matter for the Tribunal to determine the applicant’s credit. 

27. The adverse findings by the Tribunal in relation to the practice of I-Kuan Tao were open to the Tribunal and were the subject of comprehensive reasons.  Nothing said by the first applicant from the bar table identified any jurisdictional error.  The second applicant suggested that the member of the Tribunal had asked questions in an aggressive manner.  There is no evidence before the Court to support that contention. The material before the Court and the reasons of the Tribunal are inconsistent with any such assertion.  On the face of the material before the Court, the applicants had a genuine hearing. 

28. To the extent that the second applicant seeks to complain about the asking of questions, that is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on the merits.  Bias is a matter that must be clearly alleged and properly proven.  No allegation of bias is made out.  To the extent that the second applicant suggested she had some understanding difficulties, on the material before the Court it is apparent that the Tribunal took into account the difficulties that were encountered in relation to the second applicant and the adverse findings made by the Tribunal in relation to the second applicant’s credibility were open. 

29. For reasons earlier given, it is apparent that the second applicant had a real and fair hearing.  Nothing said by the applicants from the bar table identified any jurisdictional error.  In relation to ground 1 under the orders sought, for the reasons given above, the Court complied with its statutory obligation and the applicants had a genuine hearing.  The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification, and the assertion that the decision was not fair or unreasonable is not made out. The Tribunal’s reasons reflect a careful consideration of the claims and evidence of the applicants.  Ground 1 of the orders sought by the applicant fails to make out any jurisdictional error. 

30. In relation to ground 2, the adverse findings in relation to the credibility of the second applicant were a matter for the Tribunal, and it is apparent that the Tribunal took into account the applicant’s limited education and the issue concerning the applicant’s dialect. 

31. For the reasons earlier given, it is apparent that the second applicant had a genuine hearing and that there was no denial of procedural fairness in the conduct of that hearing as alleged in ground 2.  Ground 2 fails to make out any jurisdictional error. 

32. In relation to ground 3, this is in substance a challenge to the adverse findings made by the Tribunal.  It was for the Tribunal to determine the applicants’ credit.  Those adverse findings on credit were open, and ground 3 fails to make out any jurisdictional error. 

33. In relation to ground 4 of the orders sought, it is clear that the Tribunal gave careful attention to the claims of the applicants in relation to the practice of I-Kuan Tao and that the adverse findings by the Tribunal as to the applicants not being genuine practitioners and pursuing that practice for the purpose of furthering protection claims was open.  Ground 4 fails to make out any jurisdictional error. 

34. In relation to ground 5 of the further orders sought, it is clear that the Tribunal took into account the applicants’ claims in relation to the practice of I-Kuan Tao.  There is no reference in the Tribunal’s reasons to baptising cards. 

35. It is not necessary for the Tribunal to refer to all items of evidence, and insofar as any reference to baptising cards are suggested to be a claim for a fear of persecution, no such claim was made in the material advanced by the applicants and no such claim arises on the material before the Court.  Ground 5 fails to make out any jurisdictional error. 

36. In relation to ground 6 of the orders sought, this is again an impermissible challenge to the adverse findings in relation to the applicants’ credibility.  Ground 6 fails to make out any jurisdictional error. 

37. Ground 7 suggests that the applicants were not given a proper chance to engage with the Tribunal.  It is apparent from the Tribunal’s reasons that the Tribunal raised its issues of concern in relation to the applicants’ credibility with the applicants.  Nothing in ground 7 identified any jurisdictional error.  The three grounds under the heading Grounds of the Application are, in substance, a repetition of the applicants’ claims and do not identify any jurisdictional error.  The application fails to make out any jurisdictional error.

1. The application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  8 June 2016