CFG15 v Minister for Immigration
[2017] FCCA 3075
•13 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFG15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3075 |
| Catchwords: MIGRATION – S. 483 certificate – information the subject of the certificate provided to the applicants prior to the hearing before the Tribunal – opportunity for respondent to comment of contents of documents the subject of the s. 438 certificate – no failure to accord procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 425, 438 |
| Cases cited: AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 SZRCI V Minister for Immigration and Citizenship (No.2) [2012] FCA 1291 |
| First Applicant: | CFG15 |
| Second Applicant: | CFH15 |
| Third Applicant: | CFI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2399 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 14 July 2017 |
| Date of Last Submission: | 14 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 13 December 2017 |
REPRESENTATION
| First Applicant | Appeared in person |
| Second Applicant | No appearance |
| Third Applicant | No appearance |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2399 of 2015
| CFG15 |
First Applicant
And
| CFH15 |
Second Applicant
And
| CFI15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed 26 October 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 5 October 2015 (‘the Tribunal decision’). The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The application lists eight grounds of review (copied without amendment):
1. I don’t think DIAC and RRT’s decision are fair and reasonable as they failed to take a good consideration in my claim, ignoring my background and actual persecution in China.
2. RRT didn’t well consider my statement and comments given to the question asked in the hearing.
3. RRT failed to prudently consider my risk if I return to origin.
4. RRT failed to consider my statement explanation and evidence provided in supporting my claim as a whole.
5. I am a Chinese student. I have been persecuted and threatened by Chinese authority as have a fear of return to China.
6. I will be in a great danger if I am forced to leave Australia.
7. RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.
8. Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing.
The applicants appeared before the Court with the aid of a Mandarin interpreter. The first named applicant tendered submissions in Chinese and English which appears to set out the advice of an advisor, Ms Bones.
Ms Bones’ advice was that the applicant’s application has reasonable prospects of success, on the following grounds:
1. In assessing the applicant’s claim that she fear harm from domestic violence in China, the Tribunal:
a. reached conclusions that were illogical, irrational or legally unreasonable;
b. failed to consider an integer of the applicant’s claim; and
c. failed to accord procedural fairness because it did not give the applicant an opportunity to give evidence about her fear of harm from her partner even if they were to separate in China;
2. In assessing the applicant’s primary claim that she is bisexual, the Tribunal:
a. failed to consider evidence corroborating that claim;
b. reached an illogical or irrational conclusion; and
failed to accord procedural fairness because it did not give the applicant a proper opportunity to give evidence about her sexuality;
3. In assessing the applicant’s claim that she feared economic or social disadvantage for her daughter, the Tribunal:
a. reached an illogical or irrational conclusion; and
b. failed to consider evidence supporting the claim
Background
The applicants are citizens of China. The second named applicant is the partner of the first named applicant. The third named applicant is their daughter. The primary applicant arrived in Australia on 18 February 2007, initially on a Class TU Subclass 571 visa. She applied for and was granted a further Subclass 571 visa on 23 August 2007. On 21 August 2008, she applied for and was granted a Class TU Subclass 572 visa which was valid until 17 September 2010. On 20 January 2009 the applicant departed Australia and re-entered on 21 February 2009. The applicant was unlawful between 18 September 2010 and 19 May 2013.
On 16 May 2013, the applicants applied for protection visas. The primary applicant initially claimed to fear harm and persecution on the basis of her membership of a particular social group, being a lesbian. On 2 October 2013, the primary applicant attended an interview with the delegate of the Minister. The primary applicant amended her visa application, claiming to fear harm and persecution as a bisexual person. She also claimed to fear harm from the authorities as a member of an unregistered Protestant ‘family’ church, the “God Spell Church”.
On 9 May 2014, the primary applicant was invited to comment on adverse information anonymously received by the Department. The letter states relevantly:
The Department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
On 14 May 2013 we received information from an anonymous informant. The informant alleged that your de facto partner asked you to lie in court for him on 30 May 2013. This information suggests that you may not be a credible witness, as you may be willing to lie in an official setting. On 8 November 2013 we again received information from an anonymous informant. The informant alleged that you and your family have made false statements, are not genuine protection visa applicants and can return to China. This information suggests your protection claims are contrived and non-genuine.
You must provide comment on this information.
The applicant responded to this invitation by email on 13 May 2014, which email states relevantly:
I have no idea to explain two of the anonymous letters, can’t stop these things happened (sic) also it’s malicious slander. They have freedom of expression, but I swear all of I said every sentence every word is true. I didn’t make false. I deeply know what it means to me to lie in court.
On 26 May 2014, the delegate refused to grant the applicant the Visa.
On 12 June 2014, the applicants applied to the Tribunal for review of the delegate’s decision. The initial Tribunal hearing scheduled on 16 August 2014 was cancelled by the Tribunal on 13 October 2014, and the hearing was rescheduled to 6 November 2014.
The Tribunal invited the applicants to a second hearing, which they attended on 14 September 2015. By way of a decision dated 5 October 2015, the Tribunal affirmed the decision of the delegate not to grant the visa.
The Tribunal decision
The Tribunal accepted that bisexuals form part of a particular social group in China for the purposes of the Refugee Convention but concluded that the applicant was not bisexual due to a lack of probative evidence to support her claim.[1] The Tribunal did not accept that she had suffered harm in the past or will suffer harm in the future in China based on her bisexuality.[2]
[1] Tribunal decision [16], [18]-[19].
[2] Ibid [23]-[27].
The Tribunal accepted that the applicant was a member of the family church in China, and that she may continue to be involved with the church on return to China. The Tribunal found that as her involvement in the church has been low-level, she did not face a real chance of serious harm from the authorities on return to China.[3] The Tribunal noted that the second applicant did not fear returning to China on the basis of his involvement with the church.
[3] Ibid [31]-[38].
The Tribunal found that the applicant would be in a position to pay any fine imposed on her upon her return to China for having a child out of wedlock, notwithstanding that her parents would not support her due to her sexuality.[4]
[4] Tribunal decision [40].
The Tribunal did not accept the primary applicant’s claims that the second applicant had perpetrated family violence against her.[5]
[5] Ibid [41].
In relation to complementary protection, the Tribunal did not accept that there was a real chance that the applicant would suffer harm if she returns to China on the basis of her membership of a particular social group of bisexuals or her (Christian) religion, or as a victim of family violence or for any other reason.[6] The Tribunal did not accept that the second applicant faced a real risk of significant harm on the basis of his or his parents’ religion.[7]
[6] Ibid [48].
[7] Ibid [49]-[50].
At [43] the Tribunal commented on the adverse material referred to at paragraphs [7] and [8] herein stating:
Finally, the Tribunal notes that that there is information on the Departmental file indicating that the Department received two anonymous allegations against the applicant (and her partner) about their protection visa claims and overall credibility on 14 May 2013 and 8 November 2013 (as put to the applicant for comment in a letter from the Department on 9 May 2014). The Tribunal notes these allegations, however as they are anonymous and unsubstantiated, the Tribunal gives them no weight (as discussed at the hearing).
The Tribunal concluded that the applicants did not face a real chance of persecution upon return to China, that their fear was not well founded nor were there substantial grounds for believing they would suffer significant harm.[8]
[8] Ibid [44]-[45], [51].
Findings
An issue in the present proceeding is the effect of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (‘MZAFZ’) and Singh v Minister for Immigration and Border Protection [2016] FCAFC 183 (‘Singh’).
On 13 July 2017, the Minister filed an affidavit of Ben James Kelly, a solicitor employed by the solicitors for the first respondent, affirmed that day. Mr Kelly deposes that at Folio 133 of the departmental file, there is a document titled “notification regarding the disclosure of certain information under section 438 of the Migration Act 1958” dated 26 May 2014.
The notification states that it applies to documents at folios 66 – 67 and 101 – 108 of the departmental file and the affidavit exhibits at BJK-3 the documents in those particular folios. Paragraph [7] of the affidavit states:
[t]he documents comprising Exhibit BJK-3 are the Department’s records of two anonymous allegations against the first applicant (and her partner) about their protection claims and overall credibility which are described in paragraph [43] of the Administrative Appeals Tribunal’s decision.
A copy of the affidavit and a copy of the documents comprising exhibit BJK-3 had been served on the applicants prior to Mr Kelly affirming the affidavit.
In my view the evidence of Mr Kelly is relevant and admissible to the proceeding as it is relevant to whether the Tribunal exceeded its jurisdiction or failed to exercise its jurisdiction. In SZRCI V Minister for Immigration and Citizenship (No.2) [2012] FCA 1291 at [14], Flick J noted:
[e]vidence is admissible where a question arises as to whether or not a particular document was or was not before a decision maker when making his decision.
The affidavit of Mr Kelly contains relevant and in my view admissible evidence as to what information was referred both by the Delegate and the Tribunal under a certificate issued under s.438 of the Act.
In this proceeding, any defect on the part of the Tribunal to expressly refer the applicant to a certificate under s.438 has not led to any loss of opportunity on the part of the applicants to advance their case or to respond to the contents of the documents which were the subject of the certificate. This is akin to the circumstances dealt with by Barker J in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 in which case he admitted evidence of what documents were the subject of a s.438 certificate. The documents that are the subject of the certificate have been provided to the applicant and were so provided prior to the decision being made by the delegate. They were referred to at the hearing before the Tribunal where the Tribunal expressly disavowed any reliance upon those documents for the purposes of making its decision after discussing the documents with the applicant at [43]. No detriment has been shown.
I note in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 (‘MZAFZ’), Beach J declined to look at the documents covered by a s.438 certificate. Importantly, Beach J does not find that the evidence of what was in the certificate is admissible. He declined to look at those documents for the reasons he set out at [55]:
I declined that invitation for a number of reasons. First, I am entitled to proceed on the basis that the documents covered by the certificate had relevance to the applicant's visa application, whether favourable, unfavourable or neutral. If not, the s 438(1)(a) certificate would not have been necessary and the documents would not have been before the Tribunal. Second, it was the Tribunal's task to review the documents, not mine. Third, even if I accepted points 54 (a) to (c), it does not address the points set out at 50 above in terms of what procedural fairness required that the Tribunal ought to have done, save for any operation of s 422B.
The present case can be distinguished from MZAFZ as the documents which are the subject of the certificate (or the substance thereof) have been provided to the applicants prior to the Tribunal hearing and the applicant has had an opportunity to comment. Further the Tribunal has expressly stated that it did not act on the information in those documents. That was not the case in MZAFZ. In this case, the Court is not being asked to make findings about what the documents are or to speculate on what use has been made of the documents by the Tribunal. There would be no utility in remitting the matter for the purpose of a s.438 certificate being provided in circumstances where the information the subject of the certificate has already been provided and the applicant has had an opportunity to respond. It is open for this Court to admit the evidence of the documents covered by the s.438 notification: Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 and Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194.
The documents annexed to the affidavit of Ben Kelly are the documents that were referred to by the Tribunal at [43] of its decision and as it noted above, the Tribunal disavowed any reliance on those documents in making its decision.
For these reasons I am not of the view that any jurisdictional error is apparent because of the failure to disclose the s. 438 certificate.
Grounds of review
I accept the submissions of the Minister that the grounds of the application can be addressed by considering whether:
a)the Tribunal failed to take into account a relevant consideration;
b)the Tribunal’s decision was unreasonable;
c)the Tribunal denied the applicant procedural fairness; and
d)the Tribunal was biased.
The difficulty with the applicant’s grounds is that she has not clearly identified which or what claims the Tribunal has failed to take into account. The Tribunal considered matters put to it in relation to the applicant’s background, her family, home, school, church and country of origin in its decision.
The Tribunal did not accept those claims that she had been persecuted in China by reason of credibility findings. Those findings were open on the evidence. The basis the credibility findings are set out in detail in paragraph [16] – [22] of the Tribunal decision. The claims of the applicant and the concerns that the Tribunal had in relation to those claims and the reasons for the concerns are set out in a detailed and intelligible way.
In relation to claim of persecution on the grounds of bisexuality, those matters were dealt with in detail at the paragraphs just referred to.
In relation to the membership of the Family Church, the Tribunal considered and set out those claims at paragraphs [30] to [31] and considered country information before coming to a finding that the applicant, including the second applicant, did not have a proper basis for asserting a fear of persecution on the grounds of religious belief or membership of the Family Church.
I can discern no unreasonableness or illogicality in the approach that the Tribunal has taken to making factual findings or the consideration of those findings. In assessing the decision in relation to this ground I have regard to what was said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [130] as to whether there is illogicality:
sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.
To the extent that the applicant raises a ground that the Tribunal “didn’t well consider my statement and comments given to the question asked in the hearing”, it is apparent from the Tribunal’s decision that the Tribunal gave consideration to the first applicant’s and second applicant’s oral evidence and submissions made to the Tribunal. By way of example in paragraphs [14] and [15] the Tribunal refers to oral evidence given to the Tribunal by the principal applicant. Reference is also made to oral evidence at paragraphs [7] – [22], [24] – [28], [31], [36], [38] – [42], [49] – [50].
Failure to properly consider risk upon return to China
At [41] the Tribunal considered whether the applicant may suffer at the hands of her partner (second applicant) if she was to return to China. The Tribunal noted that the applicant had not provided any evidence to establish claims of domestic violence and because the Tribunal did not accept the applicant’s claims about being bisexual, it did not accept that her partner had harmed her in the past for this reason. The Tribunal noted that in relation to the relationship between the first and second named applicant:
[t]he Tribunal also notes that at the hearing the second name applicant said that if the review is unsuccessful he will return to China with his daughter and the applicant will remain in Australia. The applicant was also uncertain about the status of their relationship in the future when asked at the hearing, particularly if the application is unsuccessful, the Tribunal was not satisfied on the basis of this evidence the applicants will remain partners on return to China. The Tribunal therefore finds that the chance of the second named applicant seriously harming the first named applicant on return to China now or in the reasonably foreseeable future to be remote.
The Tribunal also considered claims that the applicant was depressed but it found that apart from the applicant’s assertions, there was no evidence before the Tribunal to indicate that the applicant is depressed.
Procedural fairness
For the reasons stated above, in my view there has been no want of procedural fairness because of the failure to disclose a s.438 certificate. Otherwise the Tribunal complied with the requirements pursuant to s.425 of the Act in inviting the applicant to appear before the Tribunal to give evidence and present arguments. The Tribunal raised concerns in relation to the applicant’s evidence and the applicant was given an opportunity to respond.
Bias
Nothing has been pointed to by the applicant in support of a submission that there is actual or apprehended bias on the part of the Tribunal in the manner in which it conducted the hearing. The applicant claims that the Tribunal was over objective in its judgement of the applicant’s evidence.
For these reasons the application is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 13 December 2017
0
6
2