Cej16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 951

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 951

File number(s):

SYG 2126 of 2016

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

7 May 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether the Tribunal relied on findings made by the Refugee Review Tribunal in affirming decision not to grant the applicant a Protection visa in response to an earlier application for a Protection visa the applicant made – whether the Tribunal made a jurisdictional error by only considering whether the applicant satisfied the complementary protection criteria in circumstances where the applicant had previously been refused a Protection visa based on the applicant’s claiming she was a refugee – whether failure to disclose 438 Certificate was material to Tribunal’s decision – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3

Migration Act 1958 (Cth) ss 5H, 36(2)(a), 36(2)(aa), 438, 476

Cases cited:

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Number of paragraphs:

22

Date of hearing:

5 May 2021

Place:

Sydney

The Applicant:

Appeared in person, assisted by an interpreter

Solicitor for the First Respondent:

Mr S Valliappan of Minter Ellison Lawyers

ORDERS

SYG 2126 of 2016

BETWEEN:

CEJ16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	7 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,600.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

   BACKGROUND

2. The applicant is a citizen of China. She arrived in Australia in June 2005 and, on 7 July 2005, she applied for a Protection visa on the ground that she satisfied the criterion provided for by s 36(2)(a) of the Act. A delegate of the Minister refused that application, and by a decision made on 14 December 2005 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision.

3. On 10 March 2014 the applicant again applied for a Protection visa, this time on the ground that she satisfied the complementary protection criterion provided for by s 36(2)(aa) of the Act. The application was accepted as a valid application given the Full Federal Court’s judgment in SZGIZ v Minister for Immigration and Citizenship.[1]

   [1] [2013] FCAFC 71

   CLAIMS FOR PROTECTION

4. In her form of application the applicant claimed she left China to escape harm from creditors and their debt collectors, and to avoid persecution as a result of conflict with the authorities. The applicant claimed “creditors and their debt collectors came to our house” looking for the applicant’s husband about a debt; the police raided the house “for fishing evidence”; since the applicant’s husband was removed from China he was threatened by the creditors and physically abused by debt collectors; the authorities stalk the applicant’s husband and force him to produce evidence against his brother; and the applicant fears “of being sustained the same which has occurred to my husband now”. In answer to the question: “Why do you think this will happen to you if you go back?” the applicant claimed her husband verbally promised the creditors to be his brother’s guarantor in helping the brother operate an eel business; the applicant’s husband’s brother was not able to carry on the business because of the combination of market downturn and corrupt officials taking bribes; the creditors therefore went after the applicant’s husband for the return of the loan; the authorities accused the applicant’s husband  of assisting his brother to “deceive the bank money”; since his return to China the applicant’s husband has suffered mentally and physically; the applicant’s husband has been stalked, threatened, and persecuted by the authorities and debt collectors; and the applicant will face the same threat.[2]

   [2] CB62-65

5. Before the Tribunal the applicant gave a different account of the reasons she feared persecution.[3] The applicant said that in July 2005 she applied for a Protection visa on the basis she was a Falun gong member; she did not attend an interview; she feared going back to China because after 2000, but before she came to Australia, her family had acted as guarantor for Mr C, a friend who had borrowed money to start an eel farm; Mr C had run away without repaying the loan; “they” were still chasing the applicant for the money; “they” found the applicant’s husband and he had been threatened; the applicant feared harm from the person she had borrowed money from to give to Mr C and from their friends; the government had taken “their farm”, and they had no means to survive.

   [3] CB181

6. Relevant to one of the grounds the applicant relies on is the applicant’s stating to the Tribunal that she did not want to apply for a Protection visa based on her being a member of Falun gong. The applicant said that when she applied for the first protection visa the applicant did not know she could use her own name so “they randomly put a Falungong [sic] claim in the application”.[4]

   [4] CB181-182, [30]

   TRIBUNAL’S REASONS

7. The Tribunal found the applicant is not a witness of truth, and that she fabricated her claims for the purpose of obtaining a Protection visa.[5] The Tribunal relied on the following matters:

   (a)In her form of application the applicant claimed that the applicant’s husband promised to be his brother’s guarantor in relation to an eel business, and that a combination of a market downturn and corrupt officials taking bribes meant the applicant’s brother was unable to carry on the business. Before the Tribunal, however, the applicant claimed that she and her husband had borrowed money to give to Mr C for him to begin an eel business, but Mr C had run away leaving the applicant and her husband to pay the creditors.[6] The Tribunal put this inconsistency to the applicant, but the Tribunal did not accept the explanation the applicant gave for the inconsistency.[7]

   (b)In the application for a Protection visa the applicant lodged in 2005 the applicant claimed she feared harm because she was a Falun gong member, not because she feared harm from debt collectors. The Tribunal found that if, as the applicant claimed, she feared harm from debt collectors it is not unreasonable to have expected her to have raised that claim in her first application for a Protection visa.[8]

   [5] CB178, [11]

   [6] CB178, [10]

   [7] CB178, [10]

   [8] CB178, [10]

8. The Tribunal also did not accept the claim the applicant made at the hearing that she feared returning to China because the government had taken her and her husband’s farm as a result of which the applicant and her husband do not have the means to survive. The Tribunal relied on the applicant not having made this claim in her written application for a Protection visa, and also on the evidence the applicant gave at the hearing before the Tribunal that her husband returned to China a number of years ago and has been in part-time employment supporting the applicant’s children who are still at school.[9]

   [9] CB178, [12]

9. Having found that the applicant fabricated her claims for protection, the Tribunal concluded it was not satisfied the applicant met the complementary protection criterion provided for by s 36(2)(aa) of the Act.

   GROUNDS OF APPLICATION

10. The application contains the following two grounds (errors in original):

    1.The Tribunal failed to make its own findings, namely, the Tribunal has been relying the previous different constituted Tribunal findings.

    2.The Tribunal failed to apply the Refugee Convention Criterion to my claims.

11. At the hearing before me these grounds were interpreted to the applicant, who is not legally represented, and I asked the applicant whether she wished to say anything about, or in relation to, these grounds. The applicant said she did not wish to say anything.

    Ground 1

12. It is true the Tribunal was aware that in her first application for a Protection visa the applicant claimed she was a member of Falun gong. It is reasonable to infer the Tribunal was aware the RRT did not accept that claim. The Tribunal, however, did not consider any claim based on the applicant’s being a member of Falun gong; and for that reason made no findings, and did not adopt any finding the RRT had made in relation to the applicant’s being a member of Falun gong. Further, the Tribunal did not consider whether the applicant satisfied the complementary protection criterion based on her being a member of Falun gong because the applicant informed the Tribunal she did not wish to apply for a Protection visa based on membership to Falun gong. The Tribunal considered, and made its own findings on, the claims the applicant did make, these being based on a claimed fear of harm from creditors and debt collectors and the government having taken the applicant’s and her husband’s farm.

13. For these reasons ground 1 fails.

    Ground 2

14. Ground 2 correctly claims the Tribunal did not consider whether the applicant was a “refugee” within the meaning of s 5H of the Act and, therefore, the Tribunal did not consider whether the applicant satisfied the criterion provided for by s 36(2)(a) of the Act. The Tribunal, however, was not required to consider that question because the RRT had considered and determined that question in 2005.[10]

    [10] Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127. The Tribunal recorded in its reasons that because the applicant had previously been refused a Protection visa, the Tribunal would consider her claims only I relation to s 36(2)(aa) of the Act (CB180, [23])

15. Ground 2, therefore, also fails.

    438 Certificate

16. The applicant submitted the “Department was unfair” because it “didn’t give the documents to the AAT”. I asked the applicant whether she could identify the documents. The applicant said she was told by a person who can understand English that documents were not passed on. After a few more questions it appeared to me, and the applicant confirmed, that the document on which she intended to rely is a certificate purportedly issued under s 438 of the Act, being the certificate annexed to the affidavit of Mr McCaughan made on 28 April 2021 (438 Certificate).

17. The 438 Certificate covers a document titled “Confirmation of Standard On Site Interpreting Request” (Interpreter Request), which is also annexed to the affidavit of Mr McCaughan. The Interpreter Request records the confirmation of a booking of an interpreter to be present at the time the applicant was due to be interviewed by the delegate. The Minister accepts the Tribunal did not disclose the 438 Certificate to the applicant and for that reason failed to accord the applicant procedural fairness. The Minister submitted, however, that the Tribunal’s failure to do so was not material to the Tribunal’s decision.

18. After I had portions of the Interpreter Request interpreted to the applicant and had explained the effect of the document, I asked the applicant whether she believes the Tribunal could have made a different decision to the one it made. The applicant said she did not know, but maybe she would have had a successful outcome.

19. It is the case that having failed to disclose the 438 Certificate the Tribunal failed to accord the applicant procedural fairness. I am satisfied, however, that the non-disclosure is immaterial. More particularly, I am satisfied that the Tribunal’s disclosing the 438 Certificate with or without the Interpreter Request covered by it could not have made any difference to the outcome of the applicant’s review by the Tribunal. Stated another way, the Tribunal’s failure to disclose to the applicant the 438 Certificate and Interpreter Request covered by it did not deprive the applicant the possibility of a successful outcome.[11]

    [11] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, at [2]

    DISPOSITION AND COSTS

20. The applicant has failed on the grounds on which she relies. I propose, therefore, to order that the application be dismissed.

21. The Minister applies for an order that the applicant pay his costs set in the amount of $5,600. I informed the applicant that the usual order a court makes in relation to costs is that the successful party is entitled to an order for costs against the unsuccessful party. I asked the applicant whether there was any reason why I should not order costs against her if the Minister succeeds. The respondent said she has no money.

22. I accept that an order for costs may work financial hardship on the applicant but that, by itself, is not a sufficient reason for not exercising my discretion in favour of ordering the applicant to pay the Minister’s costs. I propose, therefore, to order that the applicant pay the Minister’s costs. I also propose to set those costs in the amount of $5,600, which is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       7 May 2021