CLO18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 734

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 734

File number(s):	SYG 1341 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	16 August 2024
Catchwords:	MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal made a finding without supporting evidence, failed to consider the applicants’ claims, or reasoned in a manner that was not open to it on the evidence – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	37
Date of hearing:	8 August 2024
Place:	Sydney
Appearing for the Applicants:	In person
Solicitor for the First Respondent:	Mr M Burnham of Sparke Helmore Lawyers
Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 1341 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CLO18

First Applicant

CLP18

Second Applicant

CLQ18

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	16 AUGUST 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. The applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Protection (subclass 866) visas (protection visas).

2. For the following reasons, the application before the Court must be dismissed.

   BACKGROUND

3. The applicants are citizens of the People’s Republic of China (China). On 23 September 2014, the first applicant (Applicant) applied for a protection visa, together with the second and third applicants who are his wife and daughter.

4. The Delegate refused the application on 13 August 2015.

5. On 1 September 2015, the applicants applied to the Tribunal for review of the Delegate’s decision. The applicants attended a hearing before the Tribunal on 25 January 2018.

6. On 26 April 2018, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

7. The Tribunal found that the Applicant was not a credible witness (at [22]).

8. The Tribunal considered that there were numerous inconsistencies in the Applicant’s evidence in support of his claim to have been threatened and attacked by a man he injured in a car accident more than a decade earlier (injured man). The Tribunal found that the Applicant had given inconsistent evidence regarding:

   (a)what was done to him by the injured man, including whether he was slashed with a knife or punched “constantly” (at [26]);

   (b)where he had lived in China and whether he had been in hiding with his aunt for 1½ years (at [27] and [34]);

   (c)whether he was able to return to his parents’ home (at [29]);

   (d)whether his house was “smashed up” on one occasion or whether the injured man constantly broke into his home and broke the windows (at [33]); and

   (e)whether he was unable to return to China due to personal threats against him, or whether he would be prepared to return to China if he were “single” (at [37]).

9. The Tribunal was also concerned that the Applicant had not provided corroborative evidence in relation to his claims (at [26]). The Tribunal observed that the Applicant had made new claims at the hearing before the Tribunal, including that the injured man had gone to his home on two occasions since he came to Australia (at [34]). The Tribunal was additionally concerned by what it regarded as various implausible aspects of the Applicant’s claims, including that:

   (a)a semi-paralysed man was running away from police and searching the country for him (at [30] and [32]);

   (b)the police would respond to a call, attend the Applicant’s home and then not speak to the injured man who was a neighbour (at [32]); and that

   (c)the Applicant would not know if the police had gone to the injured man’s house to speak with him (at [32]).

10. Further, the Tribunal was concerned by the applicants’ extensive delay in lodging an application for protection visas (at [38]-[40]).

11. After accepting certain details about the applicants’ family and history in Australia, the Tribunal made the following findings in relation to the Applicant’s claims regarding the injured man (at [50]-[52]):

    50.The Tribunal accepts that in 2004 he drove his father’s truck whilst unlicensed, hit a man, ran over his legs and caused him severe injuries. The Tribunal accepts that the injured man lost the use of his legs, was paralysed and unable to work. The Tribunal accepts that the injured man was about 40 years old at the time of the accident and had two dependent children. The Tribunal accepts that he was required to pay for the injured man’s medical expenses and pay him compensation... The Tribunal accepts that his parents raised the money and paid for the injured man’s medical expenses and the compensation. The Tribunal accepts that the injured man was angry with him and felt that the compensation was inadequate.

    51.The Tribunal does not accept that the injured man threatened to kill the first named applicant, that every time he saw him he wanted to kill him, that he threatened and punched him constantly, that he attempted to kill him and slashed his arm with a knife. The Tribunal does not accept that the first named applicant hid at his aunt’s home for 1½ years. The Tribunal does not accept that the injured man located him at his aunt’s home, or, alternatively, that the injured man hired someone to locate him or, alternatively, that the injured man’s friends located him at his aunt’s home. The Tribunal does not accept that he returned to his family home in the second half of 2006 and found the windows, doors and everything smashed in the house. Alternatively, the Tribunal does not accept that when he returned to his family in the second half of 2006 the injured man was there, the Police were called and the injured man ran away and evaded the Police. Alternatively, the Tribunal does not accept that the injured man constantly broke into his home and broke the windows.

    52.The Tribunal does not accept that the first named applicant’s parents were worried that he would be killed so they helped him to leave China. The Tribunal does not accept that after he came to Australia the injured man went to his house looking for him and keeps spying on his house. The Tribunal does not accept that the injured man sometimes harms his family and threatens them that if he returns to China he will be killed. It follows that the Tribunal does not accept that his parents reported this to the Police but they are not efficient. The Tribunal does not accept that the injured man will kill him or subject him to any other serious harm or significant harm if the returns to China now or in the reasonably foreseeable future. It follows that the Tribunal does not accept that the injured man will subject the second and/or third named applicants to serious harm or significant him if they return/go to China now or in the reasonably foreseeable future.

12. The Tribunal went on to make the following findings (certain details have been redacted to prevent identification):

    55.The Tribunal accepts that the second named applicant was born on [a date]. The Tribunal accepts that she came to Australia on [a date] as the holder of a [visa]. The Tribunal accepts that she lived in Australia unlawfully from [a period]. The Tribunal accepts that she married the first named applicant in Australia and that the third named applicant is their child. The Tribunal accepts that she was [redacted] pregnant at the time of the hearing. The Tribunal has considered her evidence in relation to the first named applicant’s claims. She has no direct knowledge of the circumstances surrounding his claims and her evidence is based on what he has told her. She is not an independent witness, is a member of his family, is an applicant in these proceedings and has a vested interest in the outcome of this application. The Tribunal places no weight on her evidence in relation to the first named applicant’s claims for protection.

    56.During the hearing, the second named applicant stated that she wished the Tribunal to consider the first named applicant’s personal safety and the personal safety of the whole family if they return to China. In view of the Tribunal’s findings in relation to the first named applicant’s claims for protection, the Tribunal is not satisfied that the personal safety of the second and third named applicant is at risk if they return/go to China now or in the reasonably foreseeable future.

    57.The Tribunal accepts that the second named applicant was sexually abused as a child by her cousin’s husband. The Tribunal accepts that her parents remained silent about the abuse. The Tribunal accepts that she does not wish to have any contact with her cousin’s husband and that he no longer resides at the same residence as her parents. The Tribunal accepts that she is now willing and able to report him to the Police. The Tribunal notes that besides being able to protect herself she now also has the protection of the first named applicant.

    58.The Tribunal accepts that the second named applicant does not want her daughter (the third named applicant) to be exposed to the abuse that she suffered. The Tribunal is confident that she and the first named applicant will do their best to care for and protect the third named applicant. They are able to obtain their own Hukou (household registration) and establish their own household if they do not wish to live with either of their parents.

    59.The Tribunal finds that the claims made by the first named applicant have no nexus to the Refugees Convention. In any event, the Tribunal does not accept that the first named applicant is at risk of serious harm or significant harm, for any of the reasons claimed, if he returns to China now or in the reasonably foreseeable future. It follows that the Tribunal does not accept that the second and third named applicants are at risk of serious harm or significant harm because of him if they return/go to China now or in the reasonably foreseeable future.

    60.The Tribunal accepts that the first and second named applicants wish to live in Australia permanently and do not wish to return to China.

13. Considering the above, the Tribunal found that the applicants were unable to meet the criteria for a protection visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [60]-[67]).

    PROCEEDINGS BEFORE THIS COURT

14. The applicants commenced the current proceedings through an application filed on 11 May 2018, relying upon the following grounds:

    1.The Tribunal made a finding without supporting evidence. The Tribunal gives evidences that the applicant did not suffer cancer on 24 September 2014 while he was diagnosed with cancer in January 2015.

    2.The applicants claimed their family safety but the Tribunal failed to consider their claims especially for their children’s safety.

    3.The first named applicant claimed that he could return to China if he was single. In other words, the applicant’s family could not return to China because of safety concern. The claim is not inconsistent with his claims.

    4.        The Tribunal failed to consider all applicants’ claims as a whole.

    5.The Tribunal did not make any finding regarding the third applicant at risk of serious harm when returning to China.

    Ground 1

15. Ground 1 contended that the Tribunal found, without evidence, that the Applicant did not suffer cancer on 24 September 2014 while he was diagnosed with cancer in January 2015.

16. The Tribunal’s reasoning regarding the cancer diagnosis was as follows:

    28.The Tribunal raised these inconsistencies in his evidence as an issue with the first named applicant and noted that it raised concerns in relation to his credibility and the veracity of his claims. He responded that his aunt’s house is also located in [a] Province and that is why he did not mention it. The second named applicant responded that he is stressed and has been diagnosed with cancer and may not remember clearly. When the Tribunal noted that his application for Protection visas was lodged on 24 September 2014 well before he was diagnosed with cancer, she responded that he was diagnosed with cancer in January 2015. The Tribunal does not accept this explanation or these claims….

    44.The first named applicant gave evidence that he was diagnosed with throat cancer in January 2015. He stated that he received chemotherapy and is in recession. He stated that he is required to have medical check-ups for a certain period. Neither he nor the second named applicant made any claims in relation to him having had cancer. There is no evidence before the Tribunal to indicate that he will be refused or prevented from having medical check-ups in China and treatment in the future, if required, for a Refugees Convention reason…

    53.The Tribunal accepts that the first named applicant was diagnosed with throat cancer in January 2015, has undergone chemotherapy and is in remission. The Tribunal accepts that he is required to have regular medical check-ups for a certain period. There is no evidence before the Tribunal to indicate that he will be refused or prevented from having medical check-ups in China and treatment in the future, if required, for a Refugees Convention reason. The Tribunal notes that he has not made any claims in relation to having had cancer.

17. The inconsistencies raised by the Tribunal at [28] related to evidence that had been given by the Applicant in his protection visa application form indicating that he had only lived at one address in China. The Tribunal found that this was not consistent with his claim at hearing that he had hidden at his aunt’s home for 1½ years. The Tribunal did not accept that stress associated with a cancer diagnosis accounted for the information provided by the Applicant in his visa application form. This is because that form had been provided in 2014, before he claimed that he had been diagnosed with cancer.

18. The Tribunal, therefore, made no finding that the Applicant did not suffer from cancer in 2014 when he lodged his protection visa application. What the Tribunal did find was that stress associated with a diagnosis in 2015 could not account for issues in evidence that had been submitted before the claimed diagnosis. I accept the Minister’s submission that this reasoning was logically available to the Tribunal.

19. For these reasons, ground 1 is unable to succeed.

    Grounds 2 and 5

20. Ground 2 contended that the Tribunal failed to consider the applicants’ claims, particularly in relation to their children’s safety. Relatedly, ground 5 contended that the Tribunal did not make any finding regarding the third applicant’s risk of serious harm when returning to China.

21. At the hearing before the Court, the Applicant submitted that the Tribunal had not considered whether he would face retribution and whether his children would be harmed.

22. As summarised above, the Tribunal did consider the applicants’ claims in this regard. The Tribunal did not accept the applicants’ claims regarding retribution (at [51]-[52]). In view of these findings, the Tribunal did not accept that (any of) the applicants faced a real chance of serious or significant harm in relation to their retribution claims (at [56], [59] and [62]-[64]).

23. I accept that the Tribunal did not make a direct finding that the Applicant’s unborn child would not face a real chance of serious or significant harm. However, this is because that child was not an applicant before the Tribunal, having not been the subject of the visa application or the Delegate’s decision. In any event, it is apparent that the Tribunal did not accept that the Applicant’s family would face a real chance of harm on account of retribution from the injured man. The Tribunal’s finding that it was not satisfied that the applicants faced a real chance of serious or significant harm was dispositive of the application that was before the Tribunal.

24. I accept that further claims were made in relation to the third applicant, by reference to the abuse and mistreatment that the second applicant had experienced in China. However, the Tribunal did not accept that the third applicant would face a real chance of relevant harm on this basis (at [56]-[59] and [61]-[64]). This was having regard to the care and protection available to the third applicant through her parents.

25. It is not apparent that the applicants made any further claims, including in relation to the children’s safety, that were capable of invoking protection under the Migration Act 1958 (Cth) and were not considered by the Tribunal.

26. For these reasons, ground 2 is unable to succeed.

    Ground 3

27. Ground 3 objected to the Tribunal’s consideration that the Applicant’s claim that he could return to China if he were single was inconsistent with his other claims. This ground appeared to take issue with [37] of the Tribunal’s decision, which was as follows:

    37.The Tribunal asked the first named applicant what he thought would happen if he returned to China. He responded that he “would die for sure”. He then stated that if he was single he could return to China. He stated that now that he has children he does not want to cause trouble for them. When asked how many children he has, he responded that he has one child (the third named applicant) and the second named applicant is 10 weeks pregnant. When asked how he could cause trouble for his child, he responded that it is never too late “to carry out revenge within 10 years.” He stated that the future generation would be involved. His evidence that he was prepared to return to China if he was single is not consistent with his claims and raises further concerns about his credibility and the veracity of his claims.

28. I accept the Minister’s submission that it was open to the Tribunal to have found the Applicant’s evidence to be inconsistent in this regard. The Applicant had, on the one hand, claimed that he was unable to return to China without being killed. On the other hand, he told the Tribunal that he could return to China if he were single. This evident tension in the Applicant’s claims arose in the context of him applying for a permanent protection visa in Australia. In this context, I am not persuaded that it was relevantly closed to the Tribunal to have regarded the Applicant’s evidence in relation to his ability to return to China as inconsistent. Although another decision maker may have interpreted this evidence differently, this is insufficient to demonstrate that the Tribunal’s reasoning was relevantly closed to the Tribunal.

29. At the hearing before the Court, the Applicant suggested that the Tribunal failed to consider that his children would have to return to China with him. For the reasons given under grounds 2 and 5, I am not persuaded that the Tribunal failed to consider such a claim.

30. Ground 3 is therefore unable to succeed.

    Ground 4

31. Ground 4 contended that the Tribunal failed to consider the applicants’ claims as a whole.

1. For the reasons given under grounds 2 and 5, I have not accepted that there was any individual aspect of the applicants’ claims that was not considered.

2. It is not apparent that those claims were readily susceptible to cumulative evaluation. The Tribunal did not accept that the family were subject to ongoing threats from the injured man. In the absence of such acceptance, it is unclear how those claims were capable of cumulatively demonstrating the requisite harm when considered in relation to the applicants’ other claims.

3. In any event, the Tribunal at [60] and [63] expressed that it had considered the applicants’ claims individually and cumulatively. To the extent that the claims were susceptible to a cumulative assessment, I am not persuaded that there is sufficient basis on the material before me for finding that this was not considered by the Tribunal.

4. Ground 4 is therefore unable to succeed.

   CONCLUSION

5. For the above reasons, the application before the Court must be dismissed.

6. I will hear from the parties in relation to costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       16 August 2024