CGD16 v Minister for Immigration

[2017] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGD16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 444

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: CGD16

Second Applicant: CGE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 739 of 2016

Judgment of: Judge Vasta

Hearing date: 6 March 2017

Date of Last Submission: 6 March 2017

Delivered at: Brisbane

Delivered on: 6 March 2017

REPRESENTATION

The Applicants appearing on their own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the application filed 12 August 2016 be dismissed.

2. That the Applicants pay the Respondent’s costs of and incidental to these proceedings fixed at the sum of $7,206.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 739 of 2016

CGD16

First Applicant

CGE16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 12 August 2016 the Applicant, CGD16, seeks a review of a decision made by the Administrative Appeals Tribunal which, in turn, affirmed a decision of the delegate of the Minister for Immigration and Border Protection to not give Ms CGD16 a visa. The Second Applicant is Mr CGE16, who is the husband of Ms CGD16, and whose claim is that of a family member of CGD16.  Mr CGE16 does not make a protection claim for himself, but rather as a member of the family unit of CGD16.  Therefore, the reasons that I give relate to the application by CGD16, and I take that to include both her and her husband.

2. The facts of the matter, in short compass, are that the Applicant was born in China and she moved to Shenyang City in 2003 to attend university.  She graduated from university in 2007 and began working for a trading company in the marketing area of that company.  She married the Second Applicant in 2007, and he had been working as a technician in Shenyang.  She then lived in Shenyang with her husband up until they came to Australia in November 2013.

3. The First Applicant claimed her parents resided in a village where there were about a thousand residents.  Because the village was somewhat small, there were no street names or numbers; simply everyone knew where everyone else lived, and, if one were to send mail, the mailman would just take it to the particular person. 

4. She said that what occurred was that in July or August 2013, her parents had agreed to sell their property to a developer, and then they moved out of their house and into rented accommodation.

5. The developer did not pay the parents for the house, and so the parents decided to complain to the local government bureau.  Whilst the story is somewhat convoluted, it seems that the developers said that, as one final act of extortion to the parents, if the daughter (that is the Applicant) came back, that they would kill her, and so her mother had told her not to return. 

6. Strangely enough, in the original protection visa application, the Applicant made the following claims.  In answer to the question as to why she left China, she said:

   “Chinese government wanted to take away my house and land, and I cannot have my compensation.  I have my property right, but the government still ignore.  Unfortunately, they have the power to control the property system, and I will be jailed and possibly tortured when I went back to China.”

7. She was asked what she feared may happen if she were returned to China.  She said:

   “I am afraid we will be jailed after we return.  The Chinese government always want us to sign unfair contract to sell our property to their own developer.”

8. The question as to whom she thought may harm her, she said:

   “We will be put in jail without any legal procedures.  The Chinese government controls the law system.  Chinese government will harm and persecute us.  We don’t want to give up our property.”

9. She was asked whether the Chinese authorities could and would protect her if she were to return to China, and she indicated that they would. 

10. During the hearing before the Tribunal, the Applicant went on to give quite a deal of contradictory evidence about the history of beatings to her parents, the consequences of those beatings, and a number of other strange occurrences. 

11. The Tribunal gave a great deal of through and care when assessing these claims.  At paragraph 76, the Tribunal went through some of the obvious examples of the contradictory claims, such as:

    “…initially said that the relevant property belonged to her parents but after her husband gave contradictory evidence she changed her evidence and claimed that the property belonged to the applicants;

    She indicated that she did not have a child only to admit that she did, once evidence which contradicted the claim was put to her;

    She initially claimed that the first time her parents were beaten they were travelling to complain to the Bureau about the developers only to later claim that they were first beaten in their house;

    She initially claimed that her parents never told her that either parent was beaten only to later say that her parents told her that they were beaten;

    She initially said that she only found out her parents had been beaten in around September 2015 then said that she had been told by her mother in September 2013 that her parents had been attacked. 

    She then claimed that her parents did not give her any details of the beatings only to later describe details of the beatings; and

    She claimed that her parents were attacked with sticks but not knives and then said that they were in fact attacked with knives.

12. In paragraph 77, the tribunal noted:

    “77. The finding that the applicants had made false claims is also supported by the inconsistencies between the evidence presented by the two applicants. Some more obvious examples were that:

    The primary applicant said that there were 7 rental shops in the property whereas the husband said there were 3; 

    the primary applicant had initially said that the property belonged to her parents whereas the secondary applicant said that the applicants owned the property;

    The primary applicant said that the property made RMB 40,000 a month in rent whereas the husband said it made RMB 30,000a month;

    The primary applicant said that her parents were last beaten a month before the hearing whereas the secondary applicant said that the primary applicant’s parents were beaten only a few days prior to the hearing;

    The primary applicant initially said her parents were first beaten on the way to report the developers to the authorities whereas the secondary applicant claimed that the developers went to their home to beat them; and

    The primary applicant initially said that her parents voluntarily vacated the relevant property after a sale agreement was made with the developers whereas the secondary applicant initially claimed that the property had been forcibly occupied.

    78. In addition, much of the evidence that was given by both applicants was implausible and incredible and this also supports the finding that the applicant’s claims are untrue. Some examples include:

    That the secondary applicant would not know when he was given the property by the primary applicant’s parents;

    That the primary applicant’s parents would continue to seek to petition the authorities or sue the developers despite getting regular beatings at the hands of the developers;

    That the applicant’s parents would remain in their village despite repeated severe beatings; 

    That the applicant’s parents were not hospitalised after being attacked by 7-8 men with sticks and knives; 

    That the applicants continued to make the parents petition and sue despite knowing that the parents were being severely beaten for doing so;  and

    That the applicants would both move back to the parents village, where the developers are located and file petitions and suits despite doing nothing themselves to advance any complaints while they have been in Australia.”

13. The Tribunal quite rightly then said that,

    “79. Given the inconsistencies in the evidence given by the applicants, the implausibility of much of the evidence and the demonstrated untruthfulness of the primary applicant, the Tribunal finds that the applicants’ claims have been fabricated to bolster their chances of being granted protection visas...

14. Eventually, the Tribunal then found that the decision should be affirmed. 

15. The grounds of the application are as follows, and I will read the first two first:

    “1. The tribunal denied the applicant natural justice in determining the appeal in that the tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

    2. The tribunal is a neutral body which is in the business of considering any refugee case in light of the authentic information and reliable witnesses and should be unbiased.  The tribunal was completely biased on so called independent country information on China and the USCECC annual report 2012.  It is a matter of regret that the tribunal was not free from biasness [sic] and prejudice while reviewed by claim.  As such, the applicant was deprived from natural justice.

16. Those two grounds can be grouped together.  The strange aspect is that whilst there is a claim of bias, it is very difficult to see how such a claim is raised. 

17. The fact that the Tribunal does not believe someone does not mean that the Tribunal was biased. The Tribunal has come to a conclusion based on the evidence before it.  It is trite to say that if one is to make a claim that a Tribunal is biased, then there must be some evidence upon which the claim can be based. 

18. When I first heard this matter, on 31 October 2016, I told the Applicants that they must file written submissions so that I could understand what it was that their application was really all about.

19. The Applicants failed to file those submissions, and offered no excuse as to why they did not file those matters, other than to say that they gave everything to a lawyer, and thought that the lawyer would do everything for them.  Mr Kyranis, who appears for the Minister, has told me that there has been no conversation between anyone who apparently was representing the Applicants and his office, and there is certainly nothing on the court file to indicate that there has been any lawyers involved.

20. As there is no evidence, and no basis upon which one could see that there is any bias on behalf of the tribunal, I find that there is no substance in either of those two grounds. 

21. Ground 3:

    “3. The tribunal has totally ignored the applicant’s situation back in China, it more relies on the delegate’s decision. Therefore it is cleared [sic] that the tribunal has failed to have a fresh look into the protection visa claim; and to take the relevant legal issues in to consideration during reviewing the appeal application.  The tribunal failed to maintain the procedural fairness.

22. When one looks at that ground, one might be forgiven for believing that there was plenty of reference to the original decision of the delegate in the reasons of the Tribunal.  However, having read the Tribunal’s reasons, there is absolutely no reference at all to the decision of the delegate, other than in introductory remarks. 

23. There is no reliance upon the delegate’s decision at all in the body of the decision.  Again, if the Applicants had given any written submissions to the Court, those submissions may have been able to make clear upon what basis the claim was that the delegate’s decision had influenced the Tribunal.  However, because of the lack of evidence, I find that there is no merit in this ground either.

24. Ground 4:

    “4. The Tribunal in their decision has admitted that the petitioners were persecuted in China. Which means the applicant may be persecuted by the Chinese government.  Then obviously it is of grave concern for the applicants to live anywhere in China without harm or unnoticed by the Chinese Government.  Although banned by regulations, retaliation against petitioners by government officials reportedly continued.  The tribunal should have full grasp of the information before it raise the issue in the hearing.  The tribunal failed to send a copy of the information to the applicant to comment on prior to the hearing.  The tribunal has wrongly weigh and judged the applicant’s claim and did not have a full grasp of the definition of the refugee declared and later amended by the UN Convention.”

25. This convoluted ground, again, is without foundation.  The ground presupposes that this country information means that anyone who says that they are persecuted by the Chinese government must be telling the truth. 

26. When one looks at the findings of the Tribunal, they accepted that some persecution does occur.  What they did not accept was that the Applicants were in that category of people who are being persecuted, simply because they did not accept the evidence of the Applicants at all. 

27. If the Tribunal does not accept the Applicants fit into this category, then it is not surprising that they do not believe the Applicants and do not find that the Applicants would be persecuted by the Chinese government. 

28. This ground, in reality, is an attempt at a merits review which this Court cannot, and will not, do.  I find there is no merit in this ground and I now look at ground 5.

29. Ground 5 states:

    “5. Tribunal did not consider all aspects of my claim.  Tribunal failed to consider all aspects of my claims.  Most importantly tribunal failed to consider my main problems in China.  It has stated in the decision, but did not give me an opportunity to explain it. Tribunal neither ask any questions nor provided me an opportunity to put the case forward.”

30. Again, this ground is, really, another attempt to have merits-based review.  There is nothing specific that comes out of this ground and one need only look at the thoroughness with which the Tribunal has gone about detailing every aspect of what the Applicants have claimed to see that there is no substance in this ground. 

31. During the course of this hearing I asked the Applicants whether they wanted to say anything further apart from the grounds that had been written.  The Applicant CDG16 indicated that she wanted to say nothing more and was, therefore, I take it, content to rely upon the ground as written. 

32. For the reasons I have already enunciated, I am of the view that there is no jurisdictional error in the reasons of the Tribunal.  I, therefore, dismiss the application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  24 March 2017