CRX19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1059
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRX19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1059
File number(s): SYG 1724 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 18 October 2024 Catchwords: MIGRATION – judicial review -protection visa- no evidence ground only available in relation to positive findings- negative findings where Tribunal not satisfied and rejects evidence as not being credible are not open to challenge on no evidence judicial review ground - application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 476, 477 Cases cited: Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49 Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 14 October 2024 Place: Sydney Counsel for the Applicant: The Applicant appeared in person by Microsoft Teams Solicitor for the First Respondent: Mr J Fyfe of Minter Ellison Solicitor for the Second Respondent: Submitting Appearance save as to costs ORDERS
SYG 1724 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRX19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR - BAINS
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is 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 Kaur-Bains
On 9 July 2019 the applicant filed an application in this Court, seeking judicial review of a decision of the second respondent (Tribunal) dated 21 June 2019. The Tribunal affirmed a decision not to grant the applicant a Protection (Class XA) (subclass 866) visa (visa).
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application has been brought within the time set out in s 477 of the Act.
BACKGROUND
The applicant is a citizen of Taiwan (Republic of China). On 28 February 2013, the applicant first arrived in Australia together with his then wife, as the holder of a Class (TZ) (subclass 417) (working holiday) visa. The applicant then held subsequent holiday visas until he applied on 26 March 2015 for a protection visa. In the protection visa application, the applicant claimed to have owned a food stall in Taiwan and to have been harassed by gang members seeking to extort protection money. The applicant alleged he refused to pay, and reported the gangsters to police, but this angered the gangsters (CB 30-32).
The applicant’s then wife was initially a party to the proceedings but filed a Notice of Discontinuance on 11 July 2024.
On 7 November 2016 a delegate of the Minister refused to grant the applicant a protection visa (Delegate) (CB 104). The Delegate noted the following at [29] of its decision.
…the applicant arrived in Australia on 28/02/2013 as a holder of subclass 417 (working holiday) visa. He applied for a further subclass 417 (working holiday) visa onshore on 08/02/2014 that was granted on 25/02/2014. The applicant did not seek Australia's protection until 26/03/2015. Further to this, the applicant returned to Taiwan on 07/08/2014 and stayed there for over a month. I consider it reasonable to expect that someone in his circumstances would seek to engage Australia's protection obligations as soon as possible. His delay in seeking protection and his ability to return to Taiwan and not being harmed raises doubt and questions in my mind as to the genuineness of his claims of fearing for his life.
The Delegate found the applicant could access effective protection from the Taiwanese authorities against any threats he faced from criminal gangs ([30] of the Delegate’s decision).
On 8 November 2016 the applicant lodged an application for review to the Tribunal (CB 107).
TRIBUNAL’S DECISION
On 6 May 2019 the applicant was invited to attend a hearing before the Tribunal (CB 130) and accepted the invitation. The applicant provided to the Tribunal, by email dated 21 May 2019, a written statement and documents (CB 143-189).
On 23 May 2019 the applicant appeared before the Tribunal in person, to give evidence and present arguments. The applicant was assisted by an interpreter in the Mandarin and English languages (CB 191).
The Tribunal recorded the applicant's claims contained in his protection visa application, which were that he was a hawker who sold food, and that he feared harm from gangs that would extort money from him and seek payment for protection ([11] of the reasons). The Tribunal recorded that the applicant's ex-wife did not raise her own protection claims ([12] of the reasons).
The Tribunal assessed the applicant’s claims against Taiwan (Republic of China) as his receiving country ([14] of the reasons).
The Tribunal noted it had received a prehearing written statement from the applicant which expanded on the applicant's claims ([15] of the reasons), and extensive supporting documents provided to the Tribunal ([16] of the reasons).
The Tribunal referred to the applicant's further evidence at the hearing, that he left Taiwan in February 2013 to escape gangsters who had harassed him to repay his parents' outstanding debts ([17] of the reasons). The applicant alleged that his father left the family home and the applicant had not heard from him since, and that his mother became a Buddhist nun and he did not know her whereabouts. Accordingly, as the applicant was the only child, he was left with his parents' outstanding debts ([18] of the reasons). The Tribunal referred to the applicant's claim that he had been abducted and beaten by gangsters for several days, until he managed to run away ([20] of the reasons).
The Tribunal highlighted its key concerns in relation to the claim that the applicant had been a victim of extortion and threats by gang members in Taiwan ([23] of the reasons). In particular, it found that:
(a)the applicant's claims had significantly grown since he applied for his protection visa
([23](a) of the reasons);
(b)his oral evidence was vague at times ([23(b)] of the reasons);
(c)it was implausible that the applicant's parents disappeared in around 2006/2007 leaving
him to repay the debts and deal with gangsters ([23(c)] of the reasons);
(d)the applicant had not attempted to repay any of his parents' remaining debt whilst
working in Australia ([23(d)] of the reasons);
(e)the applicant and his ex-wife had returned to Taiwan from Australia in 2014 for a month and a half, and the Tribunal did not accept as plausible that they would not have transferred money electronically to pay off the health insurance debt in circumstances where the applicant claimed a fear of harm in Taiwan ([23(e)] of the reasons); and
(f)there was a delay in applying for the protection visa until March 2015, despite initially arriving in Australia in February 2013, whilst noting the applicant's explanation that this was because he did not know about protection visas initially and his English was limited ([23(f)] of the reasons).
In light of these concerns, the Tribunal did not accept the applicant's core claims, and did not accept he would face a well-founded fear of persecution on account of the gangsters or anyone else pursuing him for the outstanding debt that his parents owed ([24] of the reasons). Thus, the Tribunal was not satisfied that Australia owed the applicant or his former wife, protection obligations under ss 36(2)(a) and (aa) of the Act.
GROUNDS IN THE APPLICATION
In the application filed on 9 July 2019, the applicant raised the following grounds for judicial review:
1. The Tribunal fell into jurisdictional error by making a negative finding in paragraph 23 not based on facts or evidence with regard to the fact that the applicant has provided additional details and specifics about his circumstances and claims in addition to those details included on the original application forms.
2. The Tribunal fell into jurisdictional error by making a negative finding in paragraph 23 not based on facts or evidence regarding the fact the applicant paid his insurance debt in Taiwan in person in 2014.
3. The Tribunal fell into jurisdictional error by wrongly expecting the 2010 hospital report to contain the "cause of the injuries" and making a negative finding in paragraph 28 based on the fact that the hospital report did not contain this information. The choice of the applicant not to discuss his abduction and assault with hospital officials is a matter of privacy and is not a relevant consideration to his protection claims.
RELEVANT LAW
At all relevant times the Act provided as follows:
36 Protection visas—criteria provided for by this Act
…(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
……
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
PROCEEDINGS BEFORE THE COURT
At the hearing before me, the applicant attended unrepresented, remotely by way of Microsoft Teams. The applicant was assisted by a Mandarin interpreter who attended Court in person. I confirmed that the applicant was in possession of his Application, the Court Book and the Minister’s Written Submissions.
I explained to the applicant at the outset, that this Court could not engage in merits review or grant him a protection visa but could only review the Tribunal’s decision to see if there was a legal error.
CONSIDERATION
The applicant did not file written submissions. I asked the translator at the hearing to interpret to the applicant each of the grounds, which the interpreter did.
Grounds 1 and 2
Ground 1 contends that the Tribunal did not have evidence to make the negative finding in relation to the applicant’s additional details as to his expanded claims set out in [13] of this judgment.
Ground 2 contends that the Tribunal did not have evidence to make the negative finding based on the fact that the applicant said he had returned to Taiwan in 2004 to pay his insurance debt in person.
I asked the applicant if he wanted to say anything to me about these two grounds. The applicant said he had nothing to add.
The Minister contended that the Tribunal at [24] of the reasons did not accept the applicant’s core claims, essentially, because it did not accept the applicant’s evidence. The reasons included the Tribunal’s concerns set out at [23(a)] to [23(f)] of the reasons and summarised at [14(a)] to 14(f)] of this judgment. The Minister said that the concern outlined at [23(a)] of the reasons was that the applicant’s claims had grown since his initial visa application in significant respects. The concern outlined at [23(e)] of the reasons was that the applicant would go back to Taiwan in 2014, for the purpose of paying health insurance debts in person, if he had a genuine fear of harm in Taiwan. The applicant was given an opportunity by the Tribunal to address its concerns, but the Tribunal did not ultimately accept the applicant’s explanations as credible.
I note that the no evidence ground of judicial review is only available in relation to positive findings. Negative findings, where the Tribunal is not satisfied that something has occurred, can be made simply by rejecting evidence as not being credible. In Sunchen Pty Ltd v Commissioner of Taxation (2010) 114 ALD 49 at [43] to [45] His Honour Perram J states:
[43] At the level of principle there is a difference between a finding of a positive fact for which there is no evidence, and a finding that something is not the case where there is some evidence to show that it is in fact so. In the former case, it is not rationally possible to justify the finding for there is no material from which it can proceed: ex nihilo nihil fit. Setting aside such a finding does not therefore impermissibly trespass into the arena of fact finding. Rather, it enforces the procedural requirement that fact finding be based on some evidence.
[44] The analysis is quite different where a negative finding that something is not the fact is involved. If there exists evidence which contradicts that negative finding — that is, suggests that something is the fact — it remains rationally possible for the decision-maker to arrive at the same conclusion simply by rejecting that evidence as not credible. For example, where a decision-maker finds that a visa applicant has a criminal record and does so in the absence of any evidence to that effect, it is easy to conclude that the finding is vitiated for, on the material, only the opposite conclusion can rationally be reached. Where, however, a decision-maker finds that a pension applicant did not work during a 6 month period, that conclusion is not logically excluded by evidence from the applicant that she did in fact work, for it is possible for the decision-maker to disbelieve the applicant and therefore arrive at the same conclusion.
[45] For that reason, the no evidence ground should not be available where the finding challenged is in substance a negative one. The authorities in this court support, I believe, that approach: see N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478; [2000] FCA 993 at [27] per Katz J; Aung v Minister for Immigration and Multicultural Affairs [2000] FCA 1562 at [38] per Katz J; Ordenzia v Minister for Immigration and Multicultural Affairs [2001] FCA 35 at [27] per Katz J; He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 at [38] per Ryan J; Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 at [21]–[25] per Tamberlin J; Sarancharkh v Minister for Immigration and Multicultural Affairs [2001] FCA 1461 at [43]–[45] per Hill J. I do not regard the Full Court’s decision in Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352; [2000] FCA 236 as being to the contrary. It follows that this ground is not made out.
(emphasis added)
Grounds 1 and 2, as to the negative findings challenges the Tribunal’s rejection of the applicant’s claims and evidence as not being credible. The authorities cited in the preceding paragraph make clear that the no evidence ground of judicial review is not available to negative findings. Therefore, Grounds 1 and 2 fail.
Ground 3
In Ground 3, the applicant contends that the Tribunal fell into error because it wrongly expected the 2010 hospital report to contain causes of the applicant’s injuries. The applicant at the hearing then said that in fact the hospital record he provided to the Tribunal did refer to the cause of his injuries.
The Minister submitted that Ground 3 takes issue with the Tribunal’s treatment of the 2010 hospital report, which the Tribunal gave little weight as the report did not identify the causes of the injuries.
I accept the Minister’s submission and note the translated medical report (CB 204) details a head injury and doctor’s comment. The report does not identify the cause of the injuries. I note these documents have been interpreted by a NAATI qualified interpreter.
Ground 3 does not disclose a jurisdictional error.
CONCLUSION
For the above reasons the application is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 18 October 2024
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