Cia18 v Minister for Home Affairs

[2019] FCCA 525

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIA18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 525

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China – applicant not believed – applicant challenging the Tribunal decision on its merits – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424A

Cases cited:

SZBYR v Minister for Immigration (2007) 235 ALR 609

SZTGV v Minister for Immigration (2015) 144 ALD 525

Applicant: CIA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1274 of 2018

Judgment of: Judge Driver

Hearing date: 5 March 2019

Delivered at: Sydney

Delivered on: 5 March 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Leerdam of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1274 of 2018

CIA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 19 April 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 February 2019.   

2. The applicant is a male citizen of China.[1]  He arrived in Australia on 14 September 2014 as the holder of a visitor (FA 600) visa.[2]

   [1] Court Book (CB) 28.

   [2] CB 61.

3. On 10 December 2014, the applicant applied for a protection (Class XA) visa.[3] The applicant's claims for protection can be summarised as follows:[4]

   a)on 1 June 2014, his uncle, a retired naval officer, visited from Taiwan;

   b)on 5 June 2014, they went to Qingdao, where he photographed his uncle, there were naval ships in the background. The next day, the applicant and his uncle went into the naval base, which was a restricted military zone. They could see the warship shapes and his uncle stared attentively at the warships;

   c)on 15 June 2014, the applicant was asked to go the police bureau and was asked about his uncle. The police said the uncle was a spy, photographing the Dalian naval base. They asked the applicant to confess to being part of his ring. When he refused, he was tortured and woke up in hospital. His wife later bailed him from police custody; and

   d)the family decided the applicant would be safe overseas so he asked a friend to help him get a visa and then left China.

   [3] CB 1-57.

   [4] CB 54-55.

4. On 8 December 2015, the delegate refused the grant of the protection visa.[5]

   a)the applicant did not attend the protection visa interview, scheduled for 29 October 2015.[6]  Accordingly, in determining the credibility of the applicant's claims, the delegate was only able to consider the information provided in his written claims.  The delegate found that the written material did not provide sufficient bases to be satisfied that the applicant was a suspected spy or that he faced harm of any kind;[7]

   [5] CB 61-67.

   [6] CB 65.

   [7] CB 66.

5. on 16 December 2015, the applicant applied to the Tribunal for review of the delegate's decision.[8]

   [8] CB 68-74.

6. on 10 April 2018, the applicant appeared before the Tribunal to give evidence and present arguments:[9]

   a)at that hearing, the applicant stated they spent two days in Qingdao and then returned home. He stated after several days the police arrested him and said he was involved in a spy case and his uncle had gone to Dalian city and taken photos of military ships;[10]

   b)when asked if the applicant could name any tourist attractions in Qingdao, the applicant stated Guzhen, Bei Hai ship command was located there as were Haier head office and the Qingdao beer company.  He then stated he could not remember any others because he had gone through trauma.  When asked about any other tourist attractions, he stated he was in Qingdao for two days and only slept, ate and showed his uncle around for one day.  When asked to describe what he did, he stated he found a restaurant, looked around, took a bus to the beach and then took the ferry to Peng Lai. He then went to the hotel in Qing Dao, then to the beach and took photos with the military ships in the distance. His uncle told him he could look around by himself and the applicant then returned to his home;[11] and

   c)when asked how he got out of China if he had been accused of spying, he stated he was not a spy and was just involved because of his uncle. He stated the charges could be a large or minor matter and money talked. He also stated he was not on bail and there were no official charges and therefore no conviction. The Tribunal put to him that in his statement he had said that his wife spent RMB200,000 to get him out on bail. He stated he paid money, got out of detention but was not charged since there was no evidence but he was involved.[12]

   [9] CB 88.

   [10] at [7].

   [11] at [8].

   [12] at [13].

7. On 19 April 2018, the Tribunal affirmed the decision under review.[13]

   [13] CB 93-100.

The decision of the Tribunal

1. In his application, the applicant claimed that he and his uncle had a three day holiday in Qingdao and went into the naval base which was a military restricted zone and saw warships from afar. The applicant claimed that the police asked him to confess to espionage and said that his uncle was a spy and had been arrested for illegally taking photos of the naval base at the Dalian Navy base.

2. However, the Tribunal found that, at hearing, the applicant’s evidence was that he was with his uncle in Qingdao for two days and only showed his uncle around for one day.

3. The Tribunal found that when the applicant was asked to name any of the Qingdao tourist attractions, his evidence was vague and unforthcoming and even though he stated Guzhen, Bei Hai ship command, Haier head office and the Qingdao beer company and Peng Lai Ge (which, the Tribunal noted that, according to Google maps was some three hours by car from Qingdao) he was unable to identify obvious tourist attractions such as the Qingdao Naval museum.

4. The Tribunal noted that the applicant was also unable to provide any basic information about the Qingdao Naval base and was also unable to state that it was one of China’s major submarine bases.[14]

   [14] [34].

5. The Tribunal noted that when his lack of knowledge about Qingdao’s tourist attractions was put to him at hearing, he stated he could not remember because of trauma and although at hearing he named two companies and Peng Lai Ge, although Peng Lai Ge is not located in Qingdao. The Tribunal noted that when it was put to the applicant at hearing that he did not seem to have any basic knowledge of the tourist attractions in Qingdao, he stated he and his uncle had only slept, eaten and he had come and gone in a hurry and had only showed his uncle around for one day and that he was not interested in things such as a Naval museum.[15]

   [15] [34].

6. The Tribunal considered whether the applicant could not remember what it considered to be basic information about Qingdao because of trauma; however, the Tribunal found the applicant also unable to elaborate on basic information about the tourist attractions in Qingdao and the Qingdao Naval base because he was not talking about events that had occurred but was making up his evidence as he went along.[16]

   [16] [35]

7. The Tribunal did not accept that the applicant was credible or that he and his uncle went to Qingdao. The Tribunal also found that the applicant provided inconsistent evidence in relation to whether he was charged, that is in his statement he said that the police took him as a spy from Taiwan for which he would be prosecuted and that his wife spent RMB200,000 to get him out on bail, whereas at hearing he stated that he was not on bail and there were no official charges. Accordingly, neither did the Tribunal accept that the applicant’s uncle was a retired Naval officer from Taiwan, nor that he went to Dalian nor that he was arrested for illegally taking photos of the naval base at the Dalian Navy base. Nor did the Tribunal accept that the applicant had been accused of spying, nor that he was detained, tortured, bailed or that he escaped China.[17]

   [17] [36]

8. Given this, the Tribunal did not accept there was a real risk that the applicant had been linked to or had been imputed with an actual or imputed anti-government opinion for any other related or other reason or that he is at risk of harm from the authorities, including the police.[18]

   [18] [37]

The current proceedings

1. These proceedings began with a show cause application filed on 7 May 2018.  The applicant continues to rely upon that application.  There are two grounds in it:

   1. On 1 June 2014 my uncle … arrived from Taiwan for a relative visit. He was a retired Navy officer in Taiwan. I travelled with him to Qingdao. By the sea, I took photo of him with the warship as background for which I was to attend the police bureau. My uncle was arrested. The police forced me to confess I was roped into his espionage group and served him. I couldn't confess it. They cruelly tortured me. My wife [spent] RMB 200,000 to get me out on bail, waiting for the news from the police. With such a wrong case, I would receive more unjust and unfair treatment if I remained in China. As there would be no good end for me in China, our two families all asked me to leave China

   2   The member, Angela Cranston failed taking my whole suffering into account and made a decision of refusing my application for reviewing the DIBP decision. I believe that the member made jurisdictional error in his decision.

   So I have to appeal with the Federal Circuit Court for judicial review.

2. The application is supported by a short affidavit filed with it, which I received.  I also received the affidavit of Kim Mai Nguyen made on 28 February 2009.  That affidavit was tendered on behalf of the Minister when the applicant had initially failed to appear for today’s hearing.  It was not otherwise relevant. 

3. I also have before me as evidence the court book filed on 12 June 2018. 

4. Only the Minister filed written submissions in advance of today’s hearing. 

5. I invited oral submissions from the applicant.  He told me about current circumstances in China.  He referred to the tense state of relations between China and Taiwan.  He referred to incidents of persons being detected conducting espionage and severely punished.  He referred to the efforts by the Chinese Communist Party to tighten domestic social controls. 

6. Those are all matters which may have some factual substance.  As I explained to him, however, they do not assist him in attempting to establish some argument of jurisdictional error by the Tribunal.  I agree with the Minister’s submissions in relation to the grounds of review advanced.   

7. Ground 1 does no more than to restate the applicant's claims identified at [4]. These claims were considered by the Tribunal from [32]. However, the Tribunal did not accept that the applicant was credible or that he and his uncle went to Qingdao.[19]

   [19] at [36].

8. Ground 2 claims the Tribunal did not consider the applicant's suffering, disagrees with the Tribunal’s findings and asserts a broad, unspecified jurisdictional error. Without further particulars ground two is incapable of establishing jurisdictional error in the Tribunal’s decision.

9. The Tribunal identified the applicant's substantive claims and evidence to the Minister’s Department and the Tribunal from [4]-[14].  From [32]-[40], the Tribunal considered these claims and found that the applicant failed to meet the refugee or complementary protection criteria. The Tribunal raised as an issue with the applicant its concerns regarding the applicant's claims and took the applicant's comments into account.

10. The Tribunal considered the applicant's claims and gave detailed reasons for why it did not accept that the applicant had a well-founded fear of persecution. These findings were open to the Tribunal on the evidence before it.

11. In addition, the Tribunal has complied with Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act).

12. There were no s.424A obligations enlivened in this matter. The information obtained from the Google maps accessed by the Tribunal at [34] was not specifically about the applicant, nor did it, in its terms, contain a rejection, denial or undermining of the applicant's refugee claims and accordingly did not need to be put to the applicant under s.424A(1) of the Migration Act.[20]As such, there was no requirement under s.424A to invite the applicant to comment on this information.

    [20] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]-[18]; SZTGV v Minister for Immigration (2015) 144 ALD 525 at [18].

13. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.  

14. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale as it applied when the application was filed.  The applicant expressed dissatisfaction with my judgment and indicated a wish to appeal.  He did not otherwise oppose a costs order.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 8 March 2019