CLP15 v Minister for Immigration
[2016] FCCA 1991
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLP15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1991 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36(2), 48, 425 |
| Cases cited: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZSYV v Minister for Immigration & Anor [2015] FCCA 2457 SZVCH & Ministerfor Immigration& Anor [2015] FCCA 2950 Thakore v Minister for Immigration & Anor [2014] FCCA 2792 |
| Applicant: | CLP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3189 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2016 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Mr M Glavac of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed on 21 November 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $3416, in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth), as it applied at the time the application was filed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3189 of 2015
| CLP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal formerly the Refugee Review Tribunal (Tribunal). The decision was made on 18 September 2015. The Tribunal affirmed a decision of a delegate of the Minister 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 26 July 2016.
Background
The applicant is a citizen of the People's Republic of China who made his first protection visa application on 2 December 2010.[1] On 11 April 2011, a delegate of the Minister refused to grant the protection visa.[2] On 18 August 2011, the Tribunal affirmed that delegate's decision.[3]
[1] Court Book (CB) 1 - 34.
[2] CB 37 - 49.
[3] CB 51 - 78.
On 24 March 2014, the applicant made a second protection visa application.[4] It was accepted as valid pursuant to the reasoning in SZGIZ v Minister for Immigration[5] (SZGIZ).[6] On 15 September 2014, the delegate refused to grant the protection visa.[7] On 26 October 2015, the Tribunal affirmed the delegate's decision.[8]
[4] CB 79 - 112.
[5] (2013) 212 FCR 235.
[6] CB 172 [8].
[7] CB 120 - 136.
[8] CB 170 - 185.
On 21 November 2015, the applicant commenced the current proceedings.
The applicant's claims
In his first protection visa application, the applicant claimed to have a well-founded fear of persecution as a Christian.[9] In particular, he claimed that:
a)around 2005, he began to take an interest in Christianity. On Christmas Eve in 2005, two of his colleagues assaulted a church leader. The applicant wrote a letter to his superiors reporting his colleagues' actions, and was persecuted as a result. The colleagues warned him that they would retaliate against him if they had the chance;[10]
b)on Christmas Eve in 2009, he was arrested while attending a church gathering;[11] and
c)in August 2010, during a baptism ceremony at the applicant's factory, he was arrested by policemen and leaders from the Residents' Committee. He was detained for 15 days, sent to a two-week re-education class, and his factory was closed down.[12]
[9] These claims were put to the applicant in a section 424A letter: CB 157 - 161. When asked whether he continued to fear harm arising from his Christianity at the hearing, the applicant said that "he did": CB 175 [27].
[10] CB 32 - 33.
[11] CB 33.
[12] CB 33.
In his second protection visa application, the applicant claimed to fear harm from an injured worker and his associates due to an accident that occurred at the applicant's factory, and from a loan shark to whom he was indebted. In particular, he claimed that:
a)he owned a plastics manufacturing business in China. One of his workers suffered an eye injury in an accident and the applicant's insurer refused liability. The applicant paid for the medical treatment, but the worker and his associates later demanded damages that were beyond the applicant's capacity to pay. The applicant went into hiding, fearing harm from the worker and his associates if he did not meet their demands;[13]
b)if he claimed his right against the insurer he would be mistreated and persecuted;[14] and
c)as a result of the closure of his business, the applicant was unable to make repayments on a business loan he had obtained from a loan shark. If he is returned to China, he would be pursued by the loan shark.[15] At the hearing, the applicant stated that on one occasion he was beaten by the loan shark.[16]
[13] CB 105 - 106.
[14] CB 106.
[15] CB 106, 174 [16].
[16] CB 179 [48].
The Tribunal's findings
The Tribunal found that s.48A of the Migration Act 1958 (Cth) (Migration Act) prevented the applicant from claiming refugee status under s.36(2)(a) of the Migration Act.[17] The Tribunal therefore only considered his claims under the complementary protection provisions under s.36(2)(aa) of the Migration Act.[18]
[17] CB 172 [7]; SZGIZ at [38].
[18] CB 172 [9].
Overall, the Tribunal was "not satisfied that any of the applicant's claims are true".[19] First, the Tribunal found that "the applicant's credibility has been severely damaged by numerous inconsistencies between his oral evidence to the Tribunal and the evidence he provided to the Minister’s Department in relation to his current and previous protection visa applications".[20] Secondly, the Tribunal found that the applicant's explanations for these discrepancies in his evidence "do not overcome the Tribunal's concern that the evidence he has provided has been untruthful".[21] It noted that the applicant provided no written comment or response to the Tribunal's s.424A letter. Thirdly, the Tribunal found other aspects of the applicant's evidence to be "vague, unconvincing or lacking in plausibility".[22] In particular, the Tribunal:
a)did not accept that the applicant ever owned or operated a plastics manufacturing business.[23] It found the applicant's oral evidence in relation to his employment history to be "particularly troubling", as he could not provide specific details about either his work in a security company or how he came to open a plastics manufacturing business;[24]
b)did not accept that the applicant had an unpaid loan and was at risk of harm from a loan shark.[25] It considered the applicant's evidence regarding how he came to obtain a loan, the terms of the loan agreement and the manner in which the loan was repaid to be "particularly vague and confusing";[26]
c)did not accept that the applicant employed a worker who was injured and subsequently demanded compensation.[27] The Tribunal found the applicant's evidence with respect to the injured worker's medical treatment and hospital stay, efforts to pursue the insurance claim, and response to the threats made to him by the injured worker and his associates to be "unconvincing";[28] and
d)
did not accept that the applicant made any claims in relation to an insurance policy or was arrested or threatened in attempts to receive payment from an insurance company.[29]
The Tribunal observed that at no point before the hearing had the applicant mentioned that he was arrested while pursuing his compensation claim.[30]
[19] CB 185 [78].
[20] CB 183 [67].
[21] CB 184 [74].
[22] CB 184 [75].
[23] CB 185 [79].
[24] CB 184 [75].
[25] CB 185 [79].
[26] CB 184 [76].
[27] CB 185 [79].
[28] CB 184 [76].
[29] CB 185 [79].
[30] CB 183 [71].
The Tribunal was therefore not satisfied that the applicant was at risk of harm, presently or in the reasonably foreseeable future, from a loan shark, insurance company, injured worker, an injured worker's associates or the authorities.[31]
[31] CB 185 [79].
The Tribunal was similarly unconvinced by the applicant's claims to fear persecution in China due to his Christian belief. In particular, the Tribunal:
a)did not accept that the applicant is, or ever was, a member of the local church or any other Christian denomination or that he ever suffered harm as a result.[32] This was because the applicant's evidence was "extremely vague and lacking in detail", and he gave "contradictory evidence" on the nature of the harm that he suffered as a result of his religion and his speaking out against work colleagues who mistreated Christians;[33] and
b)did not accept that the applicant had ever been employed in a security position assisting the Fujian Public Security Bureau (PSB) or the police to arrest Christians in China.[34] Whilst the applicant claimed that he was employed at the PSB in his first protection visa application, he failed to mention this in his second protection visa application. When questioned about this inconsistency, he indicated that he "could not recall" holding a PSB job, and he was otherwise unable to account for the discrepancy.[35]
[32] CB 185 [80].
[33] CB 184 [77].
[34] CB 185 [80].
[35] CB 183 [68].
The Tribunal therefore found that the applicant was not a person to whom protection obligations were owed under the complementary protection criterion of the Migration Act.[36]
[36] CB 185 [81].
The current proceedings
These proceedings began with a show cause application filed on 23 November 2015. The applicant continues to rely upon that application. The applicant raises three grounds of review:
1.The Tribunal failed to provide a further hearing requested by the applicant. A failure to give the applicant an opportunity to be heard is a denial of procedural fairness. In particular, the applicant has been distressed for months before the Tribunal hearing. In the course of hearing, he was unsettled and confused to the questions raised by the Tribunal
2.The Tribunal failed to consider all of the applicant's case. In respect of his employment history, the applicant provided inconsistent evidences (paragraph 68). However, the applicant did provide consistent timeline of employment history. In respect of his position status, it is irrelevant to his claims. There is no reason for the applicant to manipulate his employment status. The inconsistency for his employment status corroborates the applicant in a stage of mental depression and other mental related issue. The Tribunal should not cast any doubt on his credibility, but rather provide further hearing for his claim
3.The Tribunal failed to deal with a claim as put. The applicant claims the loan shark harmed him. The harm also includes physical assault or beating. When the applicant told the Tribunal he was beaten by the loan shark, the Tribunal treated it as an invention of his past experience and declined to accept the applicant's explanation that “he was unable to put down everything in his written applications” (paragraph 70)
The application is supported by a short affidavit filed with it which I received as evidence. I also received as evidence the court book filed on 5 February 2016. Only the Minister prepared written submissions in accordance with procedural orders made by a registrar of the Court.
The applicant made oral submissions in support of his application. The applicant told me that he had medical evidence to support his case. He provided me with the results of certain blood tests that indicated an issue in relation to cholesterol and blood sugar. The applicant claimed that this impacted upon his memory and that a doctor had confirmed this. Be that as it may, this was not material that was available to the Tribunal and it could not take it into account. The applicant also took issue with the Tribunal’s credibility findings.
A key finding in that regard related to inconsistencies between the applicant’s description of his employment in his first and second protection visa applications. The Tribunal did not accept that the applicant had ever owned a plastics business as he had asserted. At [44] of its reasons[37] the Tribunal records that it put before the applicant its concern about the lack of evidence that he operated such a business. In oral argument today, the applicant claims that he had provided, in support of his visa application, a registration certificate and other documents.
[37] CB 178.
Those documents do not appear in the court book and there is nothing before me other than the applicant’s assertion that he had provided documentary evidence. It appears, from the Tribunal’s reasons, that that evidence was not before the Tribunal. On the basis of the material before me, I am unable to conclude that the applicant has an argument that relevant material was overlooked by the Tribunal. In other respects, relating to the grounds of review advanced, I agree with the Minister’s submissions.
Ground One
Ground One, which asserts that the applicant was denied procedural fairness in not being granted a further hearing upon request, fails to disclose jurisdictional error. Unless there is a new "issue arising in relation to the decision under review" such as to trigger s.425 of the Migration Act, the Tribunal is under no obligation to invite the applicant for a further hearing.[38] The applicant's purported distress and confusion was not an issue within the meaning of s.425, and the Tribunal's obligations were therefore discharged when the applicant was invited to and attended the hearing on 16 September 2015.[39]
[38] Minister for Immigration v SZKTI (2009) 238 CLR 489 (SZKTI), 505 at [51]; SZSYV v Minister for Immigration & Anor [2015] FCCA 2457 (SZSYV) at [47] - [50].
[39] SZBEL v Minister for Immigration (2006) 228 CLR 152, 160-1 at [25] - [26].
Reading Ground One as an assertion of unreasonable exercise of discretion by the Tribunal similarly reveals no jurisdictional error. A decision will be unreasonable if it "lacks an evident and intelligible justification" or if it falls outside “a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”[40] In this case, the Tribunal considered and declined the applicant's request for an additional hearing, and provided 21 days from the date of the request for the applicant to submit further evidence.[41] The applicant did not respond.[42] Absent further explanation or evidence, the Tribunal did not believe that the applicant's mental state was impaired at the hearing.[43] The decision to refuse a further hearing therefore had an evident and intelligible justification.
Ground Two
[40] Minister for Immigration v Li (2013) 249 CLR 332, 367 at [76], 375 at [105]; see also Thakore v Minister for Immigration & Anor [2014] FCCA 2792 at [20]-[21].
[41] CB 182 [65] - [66]; CB 167.
[42] CB 183 [66], 184 [74], 185 [78].
[43] CB 183 [66], 185 [78]; see further SZKTI, 505 at [50] and SZSYV at [49]. Contrast Minister for Immigration v SCAR (2003) 128 FCR 553 (SCAR), in which documentary evidence relevant to the applicant's mental health claims was provided.
The assertions in Ground Two are misconceived. First, the claim that the Tribunal "failed to consider all of the applicant's case" cannot be sustained on the face of the Tribunal Decision Record, which clearly shows that the Tribunal: detailed the applicant's claims and evidence as given during the departmental interview, in his first and current protection visa applications, at the hearing, and in post-hearing correspondence; provided the applicant with an opportunity to provide additional evidence and explanation for inconsistencies;[44] addressed each aspect of the applicant's claims (namely, his claims to fear harm from an injured worker, an injured worker's associates, an insurance company, a loan shark, the authorities or on the basis of his Christian belief)[45] by reference to the applicant's evidence; and clearly set out the reasons for its findings.
[44] CB 182 [64].
[45] CB 185 [79] - [80].
Secondly, the assertion that the applicant "did provide [a] consistent timeline of employment history" is incorrect (as the applicant himself seems to accept further on in Ground Two when he says that the "inconsistency for his employment status corroborates the applicant in a stage of mental depression and other mental related issue"). The Tribunal decision at [68] shows that at the Tribunal hearing, when providing details of his employment history, the applicant did not mention having been employed by the PSB despite making that claim in his first protection visa application. When asked whether he recalled having the job at the PSB, the applicant indicated that he "could not recall". When this inconsistency was discussed with him at the hearing, the applicant simply questioned the relevance of his employment history, and was unable to account for the discrepancy.
As to the assertion that his "position status" (as assistant police at the PSB) is "irrelevant" to his claims, it is trite law that an applicant's inconsistent evidence is relevant to his lack of credibility, a consideration under the Tribunal's jurisdiction par excellence. [46] Indeed, the Tribunal found that the applicant's credibility was "severely damaged" by the inconsistencies between the applicant's oral evidence to the Tribunal and evidence he provided to the Department in relation to his current and previous protection visa applications, and that these inconsistencies "related, in several instances, to matters of central significance in the context of his overall claims."[47] Moreover, the substance of the applicant's employment history was clearly relevant to his claims regarding his ownership of a plastics business (and therefore his claims regarding the workplace injury and business loan). Indeed, the Tribunal's disbelief that the applicant had ever owned or operated a plastics business followed in large part from his previous employment history and lack of experience in the field.[48]
[46] Re Minister for Immigration; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67].
[47] CB 183 [67].
[48] CB 184 [75].
Finally, the assertion that the "inconsistency for his employment status corroborates the applicant in a stage of mental depression and other mental related issue" fails for the same reasons as discussed with respect to Ground One above. That is, the Tribunal assessed the applicant's mental health claims but did not find them persuasive, and was not obliged to provide him with a further hearing.
Ground Three
Ground Three, which asserts that the Tribunal failed to properly deal with and wrongly dismissed the applicant's claim to have been physically assaulted or beaten by a loan shark, is both misconceived and invites impermissible merits review. It is clear from the Tribunal’s reasons at [48] and [70] that the Tribunal did consider the applicant's claim to have been "beaten" by a loan shark, and made an adverse credibility finding on the basis of the applicant's failure to mention the alleged beating in either protection visa application or during the Departmental interview. The Tribunal was not obliged to provide detailed reasons for disbelieving the applicant's claim or his explanation for the discrepancy,[49] so long as the findings were based on rational grounds after a consideration of matters that were "logically probative" on the issue of credibility.[50] The Tribunal adopted such an approach.
[49] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, at [67].
[50] Kopalapillai v Minister for Immigration (1998) 86 FCR 547.
I raised with the Minister’s solicitor an additional issue which occurred to me. The applicant’s current protection visa application, while limited to the complementary protection criterion, was considered by the delegate also under the refugees criterion. The Tribunal, at [9] of its reasons[51] found that it did not have power to consider the Refugees Convention criterion. In SZVCH & Ministerfor Immigration,[52] (SZVCH) I found that a like finding by the Tribunal in that case disclosed jurisdictional error.
[51] CB 172.
[52] [2015] FCCA 2950.
Subsequent single judge decisions in the Federal Court have criticised that finding. The issue is now before the Full Federal Court on an appeal by the Minister and judgment is reserved. In some other cases, I have required the Minister to show cause at a final hearing why relief should not be granted consistently with my decision in SZVCH on the basis that the issue is arguable pending the outcome of the Minister’s appeal in the Full Federal Court. I will not take that course here for several reasons.
The first is that the applicant’s second protection visa application was put forward on a completely different factual basis to the first application. Secondly, as the Tribunal records at [26] of its reasons[53] the applicant represented to the Minister’s delegate that he had received advice, in effect, that there was no Refugees Convention nexus with the claims in the second protection visa application and he was, therefore, not anticipating that it would be considered under the Refugees criterion.
[53] CB 175.
Thirdly, the applicant’s factual claims were comprehensively rejected by the Tribunal and it would seem inevitable that the outcome would have been the same before the Tribunal if it had considered the applicant’s claims against both legislative criteria. Finally, although the applicant’s prior religious claim was reconsidered by the delegate and the Tribunal, nothing new was advanced. I have concluded that these are features of this case which distinguish it from SZVCH and no show cause order should be made against the Minister in relation to it.
Rather, I have concluded that the applicant has failed to demonstrate an arguable case of jurisdictional error and, accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001(Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale as it applied at the time the application was filed. The applicant expressed his dissatisfaction with the dismissal of his application but did not make submissions specifically directed to the issue of costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $3,416, in accordance with in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules, as it applied at the time the application was filed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 August 2016
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