CEM16 v Minister for Immigration
[2018] FCCA 605
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEM16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 605 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China for political and religious reasons – applicant not believed in critical respects – other fears not well-founded – whether the Tribunal gave proper consideration to the applicant’s claims or whether there was a lack of procedural fairness considered – implications of a non-disclosure certificate issued under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 36, 424A, 438 |
| Cases cited: AMA15 v Minister for Immigration [2015] FCA 1424 BEG15 v Minister for Immigration [2017] FCAFC 198 CQZ15 v Minister for Immigration [2017] FCAFC 194 SZGIZ v Minister for Immigration (2013) 212 FCR 235 WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | CEM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2129 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Cheesman of Clayton Utz |
ORDERS
The application filed on 8 August 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2129 of 2016
| CEM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 July 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 6 March 2018.
The applicant is a citizen of China who arrived in Australia on a tourist (subclass 676) visa on 24 August 2007.[1] On 8 October 2007, he applied for a protection visa (first protection visa application). On 3 January 2008, a delegate of the Minister refused to grant the protection visa. On 29 September 2008, the then Refugee Review Tribunal affirmed the delegate's decision.[2]
[1] Court Book (CB) 3, 72.
[2] CB 108 [2].
On 8 April 2014, following the Full Federal Court judgment in SZGIZ v Minister for Immigration,[3] the applicant lodged a second protection visa application (current protection visa application).[4] On 21 November 2014, the delegate refused to grant the protection visa.[5]
[3] (2013) 212 FCR 235.
[4] CB 1-48.
[5] CB 66-85.
On 18 December 2014, the applicant applied to the Tribunal for review of the delegate's decision.[6] On 15 July 2016, the Tribunal affirmed the delegate's decision.[7]
[6] CB 93-94.
[7] CB 107-123.
On 8 August 2016 the applicant commenced the current proceedings.
The applicant's claims
The applicant claims to fear harm in China for reason of his political/religious opinion, and because of a land dispute with the Chinese authorities. In particular, he claims that:
a)he and his wife, and his mother and father, are Christian. Before he departed China, he and his wife attended a Christian house church each week;[8]
b)he was also a member of a Shouter church in China;[9]
c)around 1990, his wife became an organiser of their village church. In 1999, the government started to “crack down” on Christians. His wife's underground church was under constant attack by the government. In 2000, his wife was detained several times. He secured the release of his wife by payment of a bribe;[10]
d)the last time his wife was detained was in 2002 or 2003;[11]
e)around October 2006, his and his wife's home was “tipped off” as the secret meeting place for the house church. The police raided their home and he and his wife were interrogated by the local public security (October 2006 incident). Earlier, the applicant said that the October 2006 incident occurred when he was at another person's house church, that he was able to escape because the other churchgoers surrounded the police, and that he hid in Guangzhou until departing China;[12]
f)in April 2007, he was dismissed from his employment due to the October 2006 incident;[13]
g)his father was “persecuted to death” in China;[14]
h)in February 2012, his wife told him the government authorities were seeking to reclaim about three acres of their vegetable land, due to “unified planning”. On 3 March 2012, the leader of the demolition office came to his wife's home. His wife asked for reasonable compensation for the land, which was not agreed upon at the time. His wife later received compensation for the land;[15]
i)on 29 May 2012, a group of people attended the land to enclose it. His wife and son had a dispute with the group, and were later subject to a removal attempt by the police. The applicant's son refused to be moved from the land and was beaten by the police, charged with assault, and detained for three days. He was released after the applicant's wife paid a fine, but continued to be monitored by the police, and was warned that he would be sent to a labour camp if he “appealed again”;[16] and
j)his neighbours “suffered the same persecution” (land confiscation).[17]
[8] CB 111 [19].
[9] CB 113 [26].
[10] CB 114 [3].
[11] CB 114 [31].
[12] CB 114 [32].
[13] CB 115 [32].
[14] CB 47.
[15] CB 47.
[16] CB 47.
[17] CB 48.
The Tribunal's findings
The Tribunal considered the applicant's claims against the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act), relying on SZGIZ and AMA15 v Minister for Immigration.[18] It ultimately found that he was not a person to whom Australia owed protection obligations, for the reasons that follow.
[18] [2015] FCA 1424; CB 109 [14].
First, the Tribunal was “not satisfied the applicant is a generally credible witness” due to the inconsistencies, gaps and implausibilities in his evidence (as set out below).[19] It did not accept the applicant's claim that his memory was “not good”, noting that he had not claimed to be suffering from any medical condition, and the incidents allegedly causing him to flee China were “significant incidents that should have been recalled by the applicant in greater detail than he demonstrated”.[20]
[19] CB 109 [12].
[20] CB 109 [10].
Secondly, it considered the applicant's claim that his father was “persecuted to death”, given his later admission that his father passed away from liver cancer, was an attempt to “embellish if not fabricate” claims.[21]
[21] CB 109 [13].
Thirdly, the Tribunal was not satisfied the applicant has a real risk of suffering any harm in China for any reason related to his former religious practice. This was because the Tribunal:
a)accepted that the applicant had “some limited association” with a former house church in his local village in China, but was not satisfied that his religious practise in China was “anything other than irregular”;[22]
b)was not satisfied that the applicant worshipped in the Shouter church in China, “given his lack of any material knowledge about [it]”. It was satisfied that the claim was “false and submitted for the sole purpose of enhancing his case”;[23]
c)did not accept that his parents were or are associated with an unregistered church in China;[24]
d)did not accept that any attempt was made to arrest the applicant in October 2006, or at any other time, due to the conflicting evidence he gave about this alleged incident. This was also a “further reason that ultimately satisfied the Tribunal the applicant was not a witness of truth”;[25]
e)was satisfied that the applicant's wife was not an organiser of their village church, and had not spread the word of the Bible and Gospel as claimed, given the applicant's evidence that she was only ever briefly detained then released. The Tribunal considered it more likely that she would have been subject to more serious harm if she was engaged in the claimed work;[26]
f)did not accept that the applicant's wife was arrested for any reason, or that an attempt was made to arrest her, in 2006, because: it accepted the applicant's evidence that she was last detained in 2002 or 2003; she continued to reside in her own home after the alleged October 2006 incident without any accepted harm; and it did not accept the applicant's explanation that his wife was able to avoid harm by moving between friends' homes, given the small population of their village (1500 people);[27]
g)did not accept that the applicant hid in Guangzhou from October 2006 until August 2007, based on the inconsistency with his protection visa application, wherein he stated that he resided in his home village until July 2007, and only finished his employment in April 2007;[28] and
h)therefore rejected the applicant's claims that he or his wife were of any adverse interest to the Chinese authorities after 2002/2003.[29]
[22] CB 112 [20] - 113 [21].
[23] CB 114 [28], 113 [21].
[24] CB 113 [21].
[25] CB 113 [22] - [23].
[26] CB 114 [30] - [31].
[27] CB 116 [34].
[28] CB 116 [35].
[29] CB 116 [36].
Fourthly, the Tribunal considered the applicant's claim (which he did not pursue at hearing) that in China “there are no human rights, democracy or religious freedom”. It was not satisfied that the applicant would wish to engage in any activity or thought that would give rise to a real risk that he may be harmed for any reason relating to a lack of human rights or democracy in China (his religious opinion having been discussed separately).[30]
[30] CB 117 [38] - [39].
Fifthly, the Tribunal considered the applicant's claims regarding the land reclamation dispute. It accepted that his wife and son complained about the compensation they received, and that his son was detained by the police and released upon payment by the applicant's wife. However, it was not satisfied that the applicant would face a real risk of suffering any harm in China for this reason, because it was not satisfied that, four years later, the applicant would wish to petition if he returned to China. The Tribunal considered that: the applicant had not worked on the land for two to three years prior to departing China; he had not lodged a written protest from the safety of Australia; there was no evidence before it that the land dispute was ongoing; and the applicant's son was able to live and work in his home village from mid-2012 to 2015 when he departed to Spain on his own passport.[31]
[31] CB 119 [47] - [49].
Sixthly, the Tribunal considered the applicant's capacity to subsist in China. It accepted that he is ageing, but given his work history on the family farm, in construction, and as a cleaner and gyprocker in Australia, it was satisfied that could seek work commensurate with his skills on return to China.[32]
[32] CB 120 [53].
Finally, though not raised by the applicant, the Tribunal considered whether he would face harm in China as a failed asylum seeker. Based on the country information and the applicant's lack of relevant profile, it was not so satisfied.[33] Consequently, even considering cumulatively the aspects of the applicant's claims that it had accepted, the Tribunal was not satisfied that the applicant faces a real risk of suffering significant harm in China.
[33] CB 122 [59].
The present proceedings
These proceedings began with a show cause application filed on 8 August 2016. The applicant continues to rely upon that application. There are two grounds in it:
1. The Tribunal decision was effected to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to China. I was persecuted because my active role in Shouter church. I was persecuted by the authority and my wife is leader of the church. I am the target of the Government. I was attack by the authority. I will be persecute if I return back to China because of my religion belief. It is a convention base persecution. I provided oral evidences to establish my persecution. But Tribunal did not properly consider my evidences with the Migration Act 1958.
I was persecuted because of my religion. I did not collect more relevant documentary evidences to prove my persecution. Because I have no one to help me to collect documents.
The Tribunal's satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
2. The Tribunal did not observe Migration Act 1958 properly to making the decision. The Tribunal fail consider my evidences with the proper way which the Migration Act 1958 provided in my claims. Without the proper consideration of my statement and oral evidence if the Tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgement plaintiff S157 v Commonwealth of Australia (4 February 2002). ·
Particulars
The Tribunal did not provide me adequate particulars of the independent information. ·
The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
The Tribunal finding that the totality of the country information does not show that Shouters are not persecuted in China.
I attend the Tribunal hearing and I provided oral evidence to support my claims. Only the credibility reason the Tribunal did not consider my genuine claims.
The grounds are paraphrased in the Minister’s submissions at [17]. That is, in my view, a fair summary of the grounds.
The Tribunal failed to take into account a relevant consideration (Ground 1)
By the particulars to Ground 1, the applicant asserts that:
a)the Tribunal did not properly consider the chance of his being persecuted in China on the basis of his religious belief and active role in the Shouter church. The applicant provided oral evidence to establish his persecution;
b)he “did not collect more relevant documentary evidence to prove [his religious persecution]” because he has no one to help him collect documents; and
c)the Tribunal's satisfaction that he was “not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief”.
The Tribunal failed to afford the applicant procedural fairness in that it did not properly consider his written and oral evidence (referring to Plaintiff S157/2002 v Commonwealth)[34] (Ground 2).
[34] [2003] HCA 2; (2003) 211 CLR 476.
By the particulars to Ground 2, the applicant asserts that:
a)the Tribunal did not provide the applicant with "adequate particulars of the independent information" or an "adequate opportunity to respond the substance of the information";
b)the "Tribunal finding that the totality of the country information does not show that Shouters are not persecuted in China"; and
c)"Only the credibility reason the Tribunal did not consider my genuine claims."
The application is supported by a short affidavit filed with it, which I received. I also have before me the court book filed on 7 November 2016.
Only the Minister filed written submissions in advance of today’s hearing. Those submissions were read to the applicant before I came onto the bench by the interpreter. I invited oral submissions from the applicant this afternoon. He declined to make any submissions either in chief or in reply. In my view, the Minister’s submissions deal adequately with the grounds of review advanced. I agree with those submissions.
Ground 1
Though pleaded as a '”failure to consider a relevant consideration” ground, the particular to Ground 1 reveals that the applicant's true complaint is that the Tribunal “failed to properly consider his evidence” in relation to his religious persecution claims, and that its decision that he was “not a refugee” lacked a rational or logical foundation. Ground 1 is misconceived, and fails to reveal jurisdictional error on the part of the Tribunal, for the reasons that follow.
First, the applicant has not identified what evidence he says the Tribunal failed to properly consider, nor how this constitutes legal error. There is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact, and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of harm.[35] Moreover, the applicant concedes that he did not provide more relevant evidence to substantiate his claims.
[35] WAEE v Minister for Immigration (2003) 236 FCR 593 at [46].
In any event, it is clear from the decision record that the Tribunal had close regard to the applicant's evidence regarding his claims to fear harm based on religious belief and activities, as put in his:
a)current protection visa application, which the Tribunal summarised and considered in detail at [17], [22], [32], [35], [38] and [40];
b)interview with the delegate: see [17]-[18], [20], [33] and [40]; and
c)oral evidence at hearing: see [20], [22], [26]-[27], [30]-[32] and [34].
Secondly, the applicant's assertion that he “did not collect more relevant documentary evidence” to prove his case because he had no one to help him fails to reveal any jurisdictional error on the part of the Tribunal. The Tribunal is only obliged to consider matters raised squarely on the materials before it.[36] It is for the applicant to provide sufficient details and evidence to establish the relevant facts.[37] The Tribunal is not obliged to make his case for him,[38] and, most relevantly, the applicant was assisted by a migration agent in preparing his current protection visa application, and appears to have still been represented by the same agency at the time of the Tribunal decision.
[36] Htun v Minister for Immigration [2001] FCA 1802 at [7], [13], [42]; SZSQL v Minister for Immigration (No.2) [2015] FCA 1118 at [7].
[37] Section 5AAA of the Migration Act; Minister for Immigration v Lay Lat [2006] FCAFC 61 at [76].
[38] Minister for Immigration v Guo Wei Rong (1997) 191 CLR 559, 596.
Thirdly, the applicant's assertion that the Tribunal's finding that he was “not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief” is misconceived. The Tribunal did not assess the applicant's claims against the refugee criteria, determining that, in light of SZGIZ and AMA15, it could only consider his claims against the complementary protection criteria.[39] As to the Tribunal's determination that the applicant did not have a real chance of suffering significant harm in China for any of the stated reasons, it was based on an overall adverse credibility finding, and inconsistencies and implausibilities in the applicant's evidence. The overall adverse credibility finding was reached based on consideration of matters that were “logically probative” of the issue of credibility (as set out at [9]-[12] above) and was therefore sound.[40]
[39] CB [14].
[40] Kopalapillai v Minister for Immigration (1998) 86 FCR 547.
Ground 2
Ground 2 also fails to reveal jurisdictional error on the part of the Tribunal. The applicant has not identified what “written and oral evidence” he says the Tribunal failed to properly consider.
The applicant's complaint that the Tribunal did not provide him with "adequate particulars of the independent information" or an "adequate opportunity to respond the substance of the information" is misconceived. The Tribunal was not obliged to provide the applicant with the particulars of the independent country information that it considered, nor give him an opportunity to respond to it, as that information falls within the exception in s.424A(3)(a) of the Migration Act, being information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member".
The applicant's complaint that the "Tribunal finding that the totality of the country information does not show that Shouters are not persecuted in China" misreads the Tribunal's decision. The Tribunal did not make a finding about whether or not Shouters are persecuted in China. Rather, it rejected the applicant's claims that he was a member of the Shouter church in China, and thus did not need to consider the degree of harm that Shouters might face in China for the purposes of assessing the applicant's Protection visa application.
The applicant's assertion that, "Only the credibility reason the Tribunal did not consider my genuine claims" is also misconceived. It is clear from the decision record that the Tribunal did consider the applicant's claims to fear harm on the basis of his religious practice, and the land reclamation dispute. It also considered his claim (not pursued at hearing) that "in China there are no human rights, democracy or religious freedom",[41] his capacity to subsist in China,[42] and whether he would face harm in China as a failed asylum seeker.[43] That the Tribunal considered the applicant's claims in the context of an overall adverse credibility finding does not reveal jurisdictional error. It is well-established that credibility findings are at the core of the Tribunal's jurisdiction.[44]
[41] at [38]-[39].
[42] at [53].
[43] at [59].
[44] Minister for Immigration; ex parte Durairajasingham (2000) 74 ALJR 405 at [67].
The Minister raises a further issue which I explored in oral argument with the Minister’s solicitor. That concerns a non-disclosure certificate issued, or purported to have been issued, pursuant to s.438 of the Migration Act (Certificate), in light of the issues arising out of MZAFZ v Minister for Immigration[45] and Minister for Immigration v Singh.[46] The certificate dated 22 December 2014 is reproduced at CB 86. The Minister concedes that the certificate is invalid. The documents purportedly covered by the certificate are reproduced at CB 87-92. It is apparent from an examination of those documents that they relate to the first protection visa application made by the applicant and an offshore tourist visa application made by or on behalf of the applicant and his then partner.
[45] [2016] FCA 1081; (2016) 243 FCR 1.
[46] [2016] FCAFC 183; (2016) 244 FCR 305.
In my opinion, those documents were irrelevant to the Tribunal’s review of the delegate’s decision in respect of the applicant’s second protection visa application. There was nothing procedurally unfair in the Tribunal’s failure to disclose either the purported certificate or the documents purportedly covered by it. The Tribunal’s decision is entirely silent on both and in my view, no legal consequence flows from the issuing of that certificate. I otherwise agree with the Minister’s submissions in relation to the certificate.
The documents the subject of the Certificate (Subject Documents) include:
a)folio 22: protection visa application validity check in relation to the applicant's first protection visa application;[47]
b)Folios 24-26: internal Department case notes relating to the assessment and granting of the applicant's tourist visa;[48]
c)Folio 58: case note dated 4 April 2008 recording information given by the applicant during an interview with a Fraud Control and Investigations officer in relation to his tourist visa;[49] and
d)Folio 70: internal Department screenshot in relation to the applicant's first protection visa application.[50]
[47] CB 87.
[48] CB 88-90.
[49] CB 91.
[50] CB 92.
The Certificate states that disclosure of the Subject Documents "would be contrary to the public interest because…[they] contain information relating to an internal working document and business affairs". The Minister concedes that the Certificate is invalid for the reasons set out by Beach J in MZAFZ. The existence of the Certificate and the Subject Documents was not raised with the applicant before the Tribunal.
In CQZ15 v Minister for Immigration, the Full Court of the Federal Court said:[51]
It may be accepted that the non-disclosure by the Tribunal of the existence of a notification under s 438(2) of the Act may give rise to a denial of procedural fairness, as decided in MZAFZ … It does not, however, follow that the non-disclosure of such a notification will always give rise to a denial of procedural fairness. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the non-disclosure to be examined.
If … the contents of documents covered by the certificate or the notification in this case were found on inspection to be incapable of having any bearing on the decision of the Tribunal, then one would likely conclude that the non-disclosure of the certificate and the notification could not have deprived the applicant before the Tribunal of an opportunity to advance his or her case. This would be the case, whether or not the certificate or the notification was valid.
[51] [2017] FCAFC 194 at [68]-[69].
The Subject Documents relate to the applicant's first protection visa application and tourist visa, and do not contain information capable of having any bearing on, or any more than passing contextual relevance to, the Tribunal's review. They do not contain information that was adverse to the applicant, relevant or significant to the decision. The Tribunal's decision turned on an overall adverse credibility finding, based on inconsistencies and implausibilities in the applicant's evidence as set out in his second protection visa application and statement thereto, and oral evidence to the delegate and Tribunal.
Further, there is no indication in any document, including the Tribunal's decision, that the Tribunal had regard to the Certificate or Subject Documents. As the Subject Documents were wholly irrelevant to the review, and there is no indication that the Tribunal had regard to them, there is no basis to infer that the Tribunal acted on the invalid Certificate in any way. It follows that the Tribunal did not fall into the error identified by Beach J in MZAFZ by acting on an invalid certificate.[52]
[52] see BEG15 v Minister for Immigration [2017] FCAFC 198 at [17], [32]-[33].
In circumstances where the Tribunal has not acted on the Certificate, and the Subject Documents could not have assisted the applicant's case even if they had been disclosed, the applicant lost no opportunity to advance his case due to non-disclosure of the Certificate.[53] Consequently, non-disclosure of the Certificate resulted in no "practical injustice" to the applicant and there has been no denial of procedural fairness of the kind identified in MZAFZ or Singh.
[53] See CQZ15 [2017] FCAFC 194 at [68]-[69].
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 March 2018
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