CKC16 v Minister for Immigration
[2017] FCCA 1802
•3 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKC16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1802 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Tribunal made findings not supported by the evidence – findings not a critical step in the Tribunal’s reasons – no jurisdictional error – application dismissed. |
| Cases cited: AXG15 v Minister for Immigration and Border Protection [2016] FCA 492. SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. SZNKV v Minister for Immigration and Citizenship [2010] FCA 56. SZWCO v Minister for Immigration and Border Protection [2016] FCA 51. |
| Applicant: | CKC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1848 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 2 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 3 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Maurice Blackburn |
| Counsel for the Respondents: | Mr Hill |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 29 August 2016 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1046 of 2016
| CKC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application is one for judicial review of a decision of the Administrative Appeals Tribunal made on 28 July 2016. That decision was a refusal to grant the Applicant a protection (Class XD) visa (‘the visa’).
Whilst the Applicant set out two grounds of review in his application filed 29 August 2016, he proceeds with one ground only. That is as follows:-
“1. The Tribunal made findings that were determinative of the Applicant's claims of well-founded fear of being persecuted for religious and political reasons but which were:
a. not supported by the evidence; further or alternatively
b. illogical.
Particulars
Official Position Claim
(a) The Tribunal found that the Applicant did not make a claim about his father serving in an official position with his local parish of the Catholic Church (the Official Position Claim) until 'after the hearing with the first Tribunal' ([31] of the decision).
(b) The Tribunal then relied on this finding to reject the Applicant's claims of fear of persecution for religious reasons ([31] of the decision).
(c) However, the Applicant did in fact make the Official Position Claims before the hearing with the 'first Tribunal' and before the delegate's decision, specifically, in a letter to the First Respondent dated 11 October 2013 and translated by the First Respondent's agents on around 21 October 2013. There was no evidence that contradicted those facts.”
Political Statement Claim
(d) The Tribunal found that the Applicant did not make a claim that he had made an anti-government political statement to police (the Political Statement Claim) 'until his hearing with the first Tribunal' and 'after the delegate's decision' ([43]-[44] of the decision).
(e) The Tribunal then relied on this finding to reject the Applicant's claims of fear of persecution for political reasons ([44] of the decision).
(f) However, the Applicant did in fact make the Political Statement Claim before the 'hearing with the first Tribunal' and before the delegate's decision, including, specifically, in an interview on 11 October 2014 with Terry Lew, a delegate of the First Respondent. There was no evidence that contradicted those facts.”
The First Respondent asserts no jurisdictional error attends to the Tribunal’s decision and that the application should be dismissed with costs.
History
The Applicant is a citizen of Vietnam. He is of Kinh (Vietnam) ethnicity and Catholic religion. He left Vietnam legally on 15 December 2012. He travelled to Australia by boat and via Laos and Indonesia. He arrived in Australia as an illegal maritime arrival on 19 May 2013.
An entry interview was conducted with the Applicant on 2 June 2013. The Applicant lodged his application for a protection visa on 25 June 2014. He was interviewed in relation to his application on Christmas Island on 11 October 2014.
On 16 December 2014 a delegate of the First Respondent (‘the delegate’) refused to grant the visa.
The Applicant sought review of the delegate’s decision by the Tribunal and on 16 April 2015, the Applicant attended a hearing before the Tribunal (‘the first tribunal hearing’).
By decision of 12 June 2015, notified to the Applicant by letter of 16 June 2015, the Tribunal set aside the decision to refuse to grant the Applicant a protection (Class XA) visa and substituted a decision to refuse to grant the Applicant a protection (Class XD) visa. The Tribunal noted, at paragraph three of its Statement of Decision and Reasons (‘Decision Record’):-
“3. The Applicant applied for a protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a temporary protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a protection (Class XA) visa. Although the delegate refused the application as an application for a protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a temporary protection (Class XD) visa.”
The decision of the Tribunal of 12 June 2015 was quashed by this Court on 19 February 2016. On remittal to the Tribunal, by decision of 28 July 2016, the Tribunal again determined to refuse to grant the Applicant the visa after hearing evidence and arguments from the Applicant, who appeared before the Tribunal on 5 June 2016. The Applicant was assisted at that hearing by an interpreter in the Vietnamese and English languages. He was also represented in relation to the review by his registered migration agent.
The Tribunal decision
The Tribunal set out in paragraph 24 of the Decision Record the statutory declaration made by the Applicant attached to the visa application. The Applicant claimed to fear persecution principally because of his Catholic faith. He claimed, amongst other claims, to have been summoned many times to the police station; to have been threatened with imprisonment by the police; to have been hit by police with a baton to his ribcage; and to have engaged in several political activities against the government in support of Catholics and the Catholic Church.
The Tribunal accepted the Applicant was a practicing Catholic.
In respect of the Applicant’s claim that he joined a catholic youth organisation at the age of 15, and that he was the vice leader of this youth group from the age of 18, the Tribunal found the Applicant’s evidence “to be vague, general and limited,” and in light of “the inadequacy of the Applicant’s evidence about the activities of his youth group, and his role as vice leader … and the Tribunal’s general concerns about his credibility and that of his claims as discussed below”, the Tribunal did not accept those claims.[1]
[1] Decision Record at paragraph [30].
The Tribunal then made further relevant findings at paragraphs 31, 32 and 33 of the Decision Record which are set out below:-
“…31. Nor does the Tribunal accept the applicant’s claims regarding his father’s alleged position within the Catholic church administration. The applicant claimed in the hearing that in 2005 his father was elected to be in the Catholic administration of the Kim Lam parish and that his father’s role was as the leader of the choir in the parish. In contrast, in the applicant’s statement dated 24 April 2015, which was submitted after the hearing with the first Tribunal, the applicant claimed that his father had been appointed to the parish religious executive board in 2005 and there was no further elaboration as to what his father’s role was on the board. The Tribunal notes the applicant’s evidence regarding his father’s alleged official position does not appear to have been raised by him until after the hearing with the first Tribunal and given the lateness of this claim, and the Tribunal’s general concern about the applicant’s credibility, it does not accept that the applicant’s father was a member of the board of the church or the church administration. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to establish a profile for his family as something more than just ordinary adherents of the Catholic faith.
32. Similarly, the Tribunal notes the applicant’s claims regarding his uncle who he claimed was a priest and had been imprisoned for eight years for his role in calling up people to help build a local church. The applicant has provided limited information regarding his uncle’s detention including which years his uncle was detained. While the Tribunal accepts the applicant’s uncle may be a priest, it is not satisfied on the limited evidence before it that his uncle was detained for eight years as a political prisoner as he claimed. Nor does the Tribunal accept the applicant’s claims regarding his aspirations to become a priest himself given its findings above that he did not engage in any activities associated with the Catholic church apart from regular attendance at mass on Sundays at a registered church.
33. As the Tribunal does not accept that the applicant was an active participant in the Catholic youth organisation in his parish, including in the position of vice leader, the Tribunal does not accept that the applicant participated in activities relating to politics and religion, as he claimed in the hearing. The Tribunal does not accept that the applicant issued flyers and distributed them asking people to protest and demand for freedom of religion. The Tribunal notes that despite the applicant initially claiming in the hearing that he issued these flyers and similarly in his statement attached to his protection visa application that he, along with other people, composed these pamphlets, the applicant’s later evidence was that he did not get involved in physically making out the flyers and that it was the priests who were responsible for making the flyers. The Tribunal also finds the applicant’s evidence that these alleged pamphlets, which were distributed twice a year, on the day of assumption on 15 August and Christmas day on 25 December, would almost always say the same thing, which was about freedom of religion in Vietnam, unconvincing.”
The Tribunal did not accept that the Applicant had “made banners, placards and posters and hung them up in front of the church and on the roads leading to the church protesting against the oppression and repression of Catholics” because his evidence as to these matters was limited. The Tribunal rejected the Applicant's claim about being summoned to the police station as “implausible”, “confusing” and “contradictory”. The Tribunal did not accept that the Applicant was on a blacklist as claimed, for he had “left the country legally on a passport in his own name and there was nothing to suggest that he experienced any problems departing the country”. The Tribunal did not accept the Applicant's claim that he had protested against the government's selling of the Spratly and Parcel Islands. The Tribunal did not accept the Applicant's evidence that the police hit the Applicant three times in the ribcage on 15 July 2012 given the inconsistencies in his evidence about this; the fact that he did not raise it in his entry interview; his lack of knowledge of contemporaneous events which country information reported as having occurred at the time and place; and the fact that the “alleged political statement that he claimed he shouted” at the time was not mentioned by him “in his statement outlining his claims, attached to his protection visa application or during the interview with the delegate” and was inherently implausible in any event. Specifically, the Tribunal said at paragraphs 43 and 44 of the Decision Record the following:-
“43. The Tribunal also places considerable weight on the applicant’s evidence regarding the alleged political statement that he claimed he shouted when the police allegedly attempted to arrest him on 15 July 2012. In the hearing, the applicant claimed that when the priest and parishioners came to help him get away from the police and he managed to get away from their grasp, he paused for a little while and shouted “since you were born up till the time you were 20 years old if you don’t like communism it means you don’t have a heart but after you turn 20 onwards and if you still like communism that means you don’t have a brain”. The Tribunal notes the applicant made no mention about shouting this political statement until his hearing with the first Tribunal. Given the applicant’s evidence in the hearing was that this statement had a significant impact because he was abusing the regime, the Tribunal finds it implausible that if he had said this, that he would not have raised this either in his statement outlining his claims, attached to his protection visa application or during the interview with the delegate.
44. The Tribunal also finds it somewhat far-fetched that when the applicant was trying to break free from the clutches of the police who were beating him with batons and run away from the ten police officers he claimed arrived at the church, that he would stop to make this relatively lengthy declaration. While the applicant subsequently stated that he was running away and shouting at the same time, the Tribunal finds that this is not consistent with his initial evidence to the Tribunal that he paused and shouted this out. Given the applicant’s delay in raising this aspect of his claim until after the delegate’s decision and the implausibility of this claim, the Tribunal finds the applicant has embellished this aspect of his evidence in an effort to establish a further political element to his claims and bolster his case.”
Given the conclusions summarised above, it followed that the Tribunal did not accept associated claims made by the Applicant, although these claims were also independently considered and rejected by the Tribunal as “unconvincing and implausible”. The Tribunal did not accept the Applicant's evidence about his father being summoned by the police. Part of the reason for the Tribunal's concerns about the Applicant's credibility stemmed from the Applicant's concession that he had previously provided false evidence to the Department. The Tribunal said:-
“49. The Tribunal also notes from the delegate’s decision, a copy of which was provided to the Tribunal, and the decision of the first Tribunal, that when the applicant arrived in Australia he claimed to be under the age of 18 and to also have been an orphan. He subsequently admitted that he had provided false information. While the applicant apologised in the hearing for providing this wrong information and explained that it was because he had been at sea for a number of days in a precarious situation, he did not know what his future held and was scared he would be sent back to his country and put in jail, the Tribunal does not accept that this adequately explains his actions, which he described in the hearing, in providing some lies in the first place. The Tribunal notes according to the decision of the first Tribunal the applicant claimed that he did not think the Department would keep his information confidential so that is why he lied and that he was also told to tell lies so the Department would not send him back to Vietnam. The Tribunal finds this explanation unconvincing particularly in light of the nature of the incorrect information provided by the applicant. The Tribunal notes in the submission to the first Tribunal from the applicant’s previous adviser dated 27 April 2015 it was contended that the applicant had gone to great effort to correct the wrong information he provided at the first part of his entry interview and that it follows that there will be inconsistencies between the information he first provided and the information he provided later to correct his records. While the applicant may have amended the earlier incorrect evidence he had provided in regard to his personal details, the Tribunal finds his willingness to provide what he subsequently confirmed was false evidence raises doubts about his credibility generally.”
The Tribunal summarised its concerns as follows:-
“50. Based on the above the Tribunal does not accept that the applicant is a witness of truth. While the Tribunal accepts that the applicant is Catholic, based on the vague nature of aspects of his evidence, inconsistencies in his evidence provided at various stages of the process and the implausibility of some of his claims, as discussed above, the Tribunal does not accept that the applicant was a member of the Catholic youth organisation or group in his parish or that he was the vice leader of this group. It does not accept that his father ever held any official position on any church board or association. The Tribunal does not accept that the applicant was involved in composing or distributing pamphlets calling for people to fight for freedom for religion or any other matters or that he produced and erected banners, posters and placards or participated in protests against the oppression and persecution of Catholics or any other wrongdoings of the Vietnamese government, including the selling off of the Sprately and Parcel Islands to China. Nor does the Tribunal accept the applicant was involved in the preparation of any protest or large prayer ceremony on 15 July 2012 during which there was an attempt to arrest him and he was beaten with batons but he managed to run away, during which he made a political statement.”
Consideration
Official Position Claim
The Tribunal did not accept the Applicant’s claim that his father held a position within the Catholic Church administration, as set out in paragraph 31 of the Decision Record and as contained in paragraph 13 above.
The Applicant claims this finding is not supported by the evidence and can be characterised as illogical in the requisite sense. The Applicant points to correspondence sent by him to the First Respondent dated 11 October 2013 as set out in Annexure “TC-1” to the affidavit of Mr Tim Conboy affirmed 24 March 2017 and relied upon by the Applicant, wherein the Applicant states, in part:-
“I was born in an original Catholic family. By the trust of the parishioners, in 2005 my father was appointed to work on the parish religious executive board for many years…”
The Applicant submits that this claim concerning his father was before the Tribunal and appears to have been ignored. The Applicant submits it is important because the Applicant claimed that Catholics who had a profile of more than a mere parishioner faced a real risk of harm, a proposition accepted by the Tribunal by reference to country information before it. Thus the Tribunal’s finding that the claim was not made until after the first tribunal hearing in 2015 was wrong and there was no evidence on which the Tribunal’s finding could have been made.
The Court finds however there is no jurisdictional error in the Tribunal’s decision as a consequence of the Tribunal overlooking the 11 October 2013 statement. This is because the 11 October 2013 statement was not sufficiently significant. The relevant content of the statement was before the Tribunal in the form of the Applicant’s statutory declaration which the Tribunal found for the most part not credible. Overlooking the 11 October 2013 statement, did not of itself deny the Tribunal relevant information, and the mistaken view of the facts by the Tribunal was not significant because of the Tribunal’s findings that the Applicant’s claims were overwhelming and by way of multiple, independent findings, not credible.
The submission as set out in paragraph 15 of the First Respondent’s submissions is accepted by the Court. It is adopted here and is as follows:-
“15. The Applicant cannot show that a different result would have followed had the Tribunal not had these concerns. For one thing, the Tribunal rejected the Applicant's claims about his father not only because of the lateness with which the claim was raised but because of the Tribunal's other concerns about the Applicant's credibility. And for another, even accepting for the sake of argument that the Tribunal had accepted the Applicant's claim that his father had a position on the parish religious executive board, it is not apparent what significance that would have for the Applicant's protection claim. Especially is that so when the Tribunal had such far-reaching doubts about the Applicant's evidence. To suggest, as the Applicant suggests, that this concern about lateness was dispositive of either this specific claim or the Applicant's overcall case is to misread the Tribunal's reasons for decision.”
The finding made by the Tribunal in respect of the Applicant’s father’s position within the Church as set out in paragraph 31 of the Decision Record was not a critical step in the Tribunal’s reasons.[2] It was only one of the matters which went to the Tribunal’s general concern about the Applicant’s credibility. The Tribunal’s Decision Record is replete with references to evidence that could not reasonably have been accepted by the Tribunal and thus was not so accepted. As Logan J said in AXG15 v Minister for Immigration and Border Protection [2016] FCA 492 at [24] in terms apt to apply to the facts and findings in this case:-
“The difficulty for the appellant is that there were multiple findings made by the Tribunal which impacted upon the Tribunal’s assessment of his credibility. This was not a case where the erroneous factual finding in relation to the appellant’s accounts of events at the police station was the sole basis or even had what might be termed a “domino effect” in relation to other credibility assessments.”
[2] SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231, 19; SZNKV v Minister for Immigration and Citizenship [2010] FCA 56, 38.
The Political Statement Claim
The Tribunal rejected the Applicant's claim about what occurred on 15 July 2012. The paragraph upon which the Applicant focuses is at paragraph 43 of the Decision Record where the Tribunal does not accept that the Applicant made the “alleged political statement that he claimed he shouted” at the time because, in part, “the Applicant made no mention about shouting this political statement until his hearing with the first Tribunal ... the Tribunal finds it implausible that if he had said this, that he would not have raised this either in his statement outlining his claims, attached to his protection visa application or during the interview with the delegate”.
The Applicant claims a similar jurisdictional error, as that set out in the preceding claim, was made. As referred to in paragraph four of the affidavit of Mr Tim Conboy affirmed 24 March 2017, on 11 October 2014 the Applicant was interviewed by a delegate of the First Respondent and asked what he had said to the Vietnamese police to which he replied:-
“… I told them that since you were born until the day you turn 20, if you don't have a heart for your country or your regime it's ok. But after 20 years, 20 years of age, and you still love this regime, that means you don't have any brains.”
The recording of this interview was before the Tribunal. The Tribunal made the conclusions it did at paragraph 43 of the Decision Record (see paragraph 23 above). The Applicant submits this is a finding that could not have been supported by any of the evidence before the Tribunal.
The Court finds no jurisdictional error. Again, the effect of overlooking the recording was not to deny the Tribunal relevant information nor can the Applicant establish that a different result would have followed. This is because the Tribunal had multiple and independent reasons for rejecting the Applicant’s claim about what happened on 15 July 2012.
This finding was not a critical step in the Tribunal’s reasons. [3]
[3] Ibid.
In both of the above claims, any illogicality or irrationality in the Tribunal’s reasons did not render the decision of the Tribunal affected by jurisdictional error. On the particular facts and circumstances of this case, which included extensive and independent findings adverse to the honesty and credibility of the Applicant, it was open to the Tribunal to find that the Applicant was not a person to whom Australia owed protection obligations. As was said by Wigney J in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at paragraph 66:-
“66. … Often an adverse credibility finding is based on a number of facts and circumstances. If one of the findings, or the Tribunal’s reasoning based on that finding, could be said to be illogical or irrational, it does not necessarily follow that the Tribunal’s ultimate decision was affected by jurisdictional error. If the degree and nature of the illogicality or irrationality was not significant, and other facts and circumstances found by the Tribunal were capable of logically and rationally supporting the adverse credibility finding, or even that reasonable minds might differ based on those matters, it could not be concluded that the adverse credibility finding was illogical or irrational. Nor could it be found that the Tribunal’s decision that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations involved jurisdictional error.”
That applies in this case. The errors made by the Tribunal did not deprive the Applicant of a successful outcome because in respect of each finding the Tribunal made other and independent findings, logically and rationally supported by the evidence before it, in respect of the same matters.
The application will be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 3 August 2017
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