Csa17 v Minister for Immigration

[2018] FCCA 313

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 313

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings and conclusions were open to it – whether the Administrative Appeals Tribunal considered all claims made by the applicant – whether the Administrative Appeals Tribunal considered the applicant’s alleged religious faith according to law – whether the Administrative Appeals Tribunal had regard to all evidence provided by the applicant – whether the Administrative Appeals Tribunal’s decision was unreasonable or unfair – no jurisdictional error – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.16.05

Cases cited:
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
Minister for Immigration and Citizenship v SZLSV [2010] FCAFC 108
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: CSA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1900 of 2017

Judgment of: Judge Emmett

Hearing date: 12 February 2018

Date of Last Submission: 12 February 2018

Delivered at: Sydney

Delivered on: 12 February 2018

REPRESENTATION

Applicant: Appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Ms Sophie Given (HWL Ebsworth)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1900 of 2017

CSA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an Application in a Case, filed on 17 October 2017, made pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) seeking to set aside orders made by a Registrar of the Court dismissing the applicant’s application for judicial review by reason of the his failure to attend the first court date. The orders note that the matter was called at 11:10am and there was no appearance by the applicant.

2. In his Application in a Case, the applicant stated that his failure to attend the first court date was “due to traffic”.

3. The applicant was unrepresented before the Court today, although had the assistance of a Mandarin interpreter. 

4. I reminded the applicant that on 31 January 2018 he had appeared before me in relation to his Application in a Case. On that occasion, the applicant was directed to file and serve any evidence on which he intended to rely and to file and serve written submissions in support of his Application in a Case.

5. At the outset of the hearing this morning, the applicant confirmed that he had not filed any documents, either in accordance with those directions or otherwise.

6. I explained to the applicant that of significance for the Court this morning would be his explanation for his failure to attend the directions hearing before the Registrar and the prospects of success of his substantive application.

7. I informed him that the first respondent conceded that, to the extent that the Court should also have regard to any prejudice that would flow, the first respondent would suffer no prejudice if the application was reinstated.

8. I explained to the applicant that the bare statement in his Application in a Case that he had failed to appear “due to traffic” was not evidence of his explanation for his failure to attend Court. I explained to the applicant that in order for the Court to have regard to his explanation (in circumstances where he had failed to file an affidavit providing evidence of his explanation) he would need to give that evidence orally if the Court was to have regard to it. The applicant declined to give any evidence in respect of any explanation for his failure to appear.

9. In any event, even if the applicant had confirmed in oral evidence that he had failed to attend the first court date “due to traffic”, such an explanation is inadequate to explain his arrival an hour after the matter was scheduled for hearing. This is particularly so where there is no evidence before me to suggest that there was any communication received from him that morning, either by the Court or the first respondent, to the effect that he was on his way, was running late or for any other reason.

10. However, in the overall interests of justice, I have regard to the prospects of success of the grounds of the substantive application seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), filed on 19 June 2017, and upon which the applicant confirmed he relied.

11. I understand the applicant’s complaints to be contained in four paragraphs, under the heading “Final orders sought by applicant”, and in two grounds under the heading “Grounds of Application” as follows:

    “Final orders sought by applicant”

    Paragraph 1, I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of I-Kuan Tao in China and Australia.

    Paragraph 2, AAT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real fact.

    Paragraph 3, AAT failed to prudently consider my risk for persecution if I return to origin.

    Paragraph 4, AAT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

    “Grounds of application”

    Ground 3, AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

    Ground 4, I do not think that I have been fairly treated by DIBP & AAT”

    (Errors in original; emphasis added)

12. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

13. Before the applicant commenced his submissions I explained to him that the role of this Court was very different to that of the Tribunal and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether the decision of the Tribunal was affected by a mistake that went to its jurisdiction. 

14. I also explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

15. To the extent that Paragraph 1 asserts that the Tribunal failed to consider the applicant’s commitment to his religion, ignored his background and the actual practice of I-Kuan Tao (“IKT”) in China and Australia, a fair reading of the Tribunal’s decision record does not bear out such complaint.

16. The Tribunal identified the applicant’s claim to be an IKT follower and that he would face serious and significant harm if he was returned to China now or in the foreseeable future. The Tribunal noted his claim that his parents and grandparents were IKT followers and were mistreated for that association. The Tribunal also noted the applicant’s claim that he had been discovered sending IKT materials back to China, that the authorities had accused him of evangelising and that he would be harmed if he returned to China.

17. The Tribunal noted that the applicant’s claims were set out in a statement accompanying his protection visa application and were expanded upon in oral evidence provided to the Tribunal at a hearing held on 15 December 2016.

18. The Tribunal then summarised the applicant’s background and noted that the applicant had held a student visa in Australia from 24 May 2011 until it was cancelled on 7 June 2013. The Tribunal noted that the applicant did not apply for a protection visa until 20 August 2014.

19. The Tribunal had regard to the applicant telling it that he wished to stay in Australia to finish his studies. The Tribunal noted that the applicant had not started any studies. The applicant responded that he had not done so because he did not have enough money and that an incident had occurred which affected his family in China.

20. The Tribunal then considered whether the applicant or his family members were IKT practitioners in China and whether they were mistreated for this reason.

21. Ultimately, the Tribunal found the applicant’s oral evidence to be internally inconsistent and that the applicant was unable to describe rituals common to IKT practice. The Tribunal found that the applicant’s knowledge of common rituals of IKT was deficient given his claim that he had been instructed in IKT since he was a child.

22. The Tribunal did not accept as plausible the applicant’s explanations to its concerns and found his evidence in relation to IKT to be vague. The Tribunal found that the applicant had no understanding of the meaning or significance of particular words or concepts related to IKT. The Tribunal noted that when it put to the applicant that he appeared to have little knowledge or understanding of initiation into IKT or its practices, the applicant responded that when he started high school his grandparents slowly explained it to him. The Tribunal found that that explanation was given to overcome the applicant’s demonstrated lack of knowledge and familiarity with the practice. The Tribunal found the applicant’s level of knowledge was not consistent with his claimed history of involvement in IKT in China.

23. Ultimately, the Tribunal comprehensively rejected the applicant’s claims to have ever been an IKT practitioner. The Tribunal also rejected the applicant’s claims that his family members were IKT practitioners and rejected his claims of harassment and mistreatment in China for those reasons.

24. The Tribunal comprehensively rejected all the applicant’s claims in relation to past harm in China.

25. The Tribunal ultimately found that the applicant did not meet the refugee criterion or the protection criterion.

26. The Tribunal’s findings would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The adverse credibility findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was

    “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility. (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)”

27. In relation to the applicant’s assertion in Paragraph 1 that the Tribunal’s decision was not fair and reasonable, unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [76]; see also Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30], [113]; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33).

28. The applicant's complaints in Paragraph 1 misconceive the role the Tribunal was required to undertake. The Tribunal was tasked with assessing the applicant's risk of harm in the reasonably foreseeable future if he was removed from Australia back to China. As stated above, the Tribunal’s conclusions that the applicant did not face a real chance of serious harm or a real risk of significant harm were open to it on the available materials and for the reasons it gave. Concerns identified by the Tribunal provide a proper and rational context for its conclusion that the applicant did not face a real chance of harm for the reasons he claimed.

29. In any event, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

30. Accordingly, the applicant’s complaints that the Tribunal’s decision was unfair and unreasonable cannot be maintained

31. In the circumstances, Paragraph 1 would appear to have no prospect of success. 

32. In Paragraph 2, the applicant said in support that he had repeatedly been asked questions about his background rather than questions relating to IKT. Again, a fair reading of the Tribunal’s decision record does not support such a contention. The Tribunal did discuss the applicant’s background with him, and it summarised that background in less than one page of a 14 page decision. The more substantive part of the Tribunal’s decision record relates to various exchanges it had with the applicant about his IKT practice in China and that of his family members.

33. The Tribunal noted various concerns about the applicant’s evidence, which it discussed with the applicant, noting his responses. As stated above, the Tribunal is not bound to accept uncritically all and any claims made by the applicant.

34. It is, moreover, well established that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs that the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim (see Minister for Immigration and Citizenship v SZLSV [2010] FCAFC 108 at [36], [38] – [39] per Kenny J). Further, the Tribunal is not prohibited from evaluating the applicant’s answers against country information about that religion. The weight to be given to that evaluation is a matter for the Tribunal.

35. There is nothing in the Tribunal’s decision record to suggest that it did more than evaluate the applicant’s knowledge and evidence about IKT against country information before it. There is nothing in the Tribunal’s decision record to suggest that the applicant was required to meet a particular standard of knowledge. 

36. The Tribunal referred specifically to the applicant’s claims of being exposed to IKT since he was a child, and had regard to that evidence in evaluating the applicant’s limited knowledge of that doctrine. Again, those findings would appear to be open to the Tribunal for the reasons it gave.

37. Accordingly, Paragraph 2 would appear to have no prospect of success.

38. In Paragraph 3 the applicant makes the bare unparticularised assertion that the Tribunal failed to consider his risk of persecution if returned to China. The applicant agreed that this complaint was no more than a general disagreement with the Tribunal. In any event, the Tribunal’s consideration of the applicant’s risk of persecution is considered in Paragraph 1 above.

39. Accordingly, Paragraph 3 would appear to have no prospect of success.

40. In Paragraph 4, the applicant stated that the Tribunal failed to consider his statements, explanations and evidence.

41. I asked the applicant which statements the Tribunal had failed to consider, and he answered that the Tribunal had failed to consider his statements in relation to his family. I also asked him which explanations the Tribunal had failed to consider, and what evidence the Tribunal had failed to consider. The applicant answered that the explanation that the Tribunal failed to consider was that his house had been searched, and the evidence that the Tribunal had failed to consider was in relation to his family and to his claim that his house was searched.

42. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered, in some detail, the applicant’s claims in relation to his family members, and the religious practices he claimed they engaged in during his upbringing in China. As stated above, it was open to the Tribunal to find that his knowledge was limited and not consistent with a person who had a long history of practice and observation, leading the Tribunal ultimately to reject the applicant’s claim ever to have been an IKT practitioner in China, or to have observed such practices.

43. The Tribunal referred specifically to his claim that the Public Service Bureau (“PSB”) had come to the family home and searched the home for IKT materials in 2011. The Tribunal then explored this incident with him in some detail.

44. In the circumstances, the applicant’s complaint that the Tribunal failed to consider his statements or his evidence in relation to his family, and the searching of his house, would appear to have no prospect of success.

45. Accordingly, Paragraph 4 would appear to have to prospect of success.

46. In Ground 3 under the heading “Grounds of application” of the applicant’s application for judicial review, the applicant said that the Tribunal unreasonably suspected the truthfulness of his claims, “just because of the absence of evidence”. In support, the applicant said that his answers to questions were his evidence. The applicant also said that the Tribunal had ignored the evidence in relation to his family and the evidence relating to further searches by the PSB of his home and that the Tribunal did not think that such conduct constituted a threat. The Tribunal’s decision record does not support the applicant’s contentions.

47. The Tribunal’s decision record referred to the applicant’s claims that the PSB forcibly closed his family’s business in 2014. Ultimately, the Tribunal did not accept that the applicant’s parents’ business was forcibly closed by the PSB in 2014. The Tribunal found that evidence to be a late invention which sought to address problems in his evidence about harm allegedly suffered by his parents in 2014. The Tribunal’s findings and conclusions would appear to be open to it, for the reasons it gave. It was for the Tribunal to evaluate and assess the truthfulness of the applicant’s claims. 

48. The Tribunal was entitled to place weight on explanations or evidence that it found to be vague or inconsistent, or to have regard to an absence in evidence which was inconsistent with the applicant’s claimed knowledge.

49. In the circumstances, Ground 3 would appear to have no prospect of success. 

50. In Ground 4, the applicant asserts that he had not been fairly treated by the Tribunal. When I asked him in what way he had not been fairly treated, the applicant first said that he could not tell me in detail and then said that he could not remember.

1. Again, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal’s review was conducted other than in accordance with the statutory regime. The applicant attended a hearing, before the Tribunal on 15 December 2016 to give evidence and present arguments. The Tribunal noted that the hearing was conducted with the assistance a Mandarin interpreter. The Tribunal explored the applicant’s claims and evidence in some detail. 

2. There is nothing on the face of the Tribunal’s decision record to suggest that it did not understand the applicant’s claims or that it had any difficulty in communicating with the applicant throughout the hearing. As stated above, there has been no evidence filed by the applicant in support of his application. Nor is there any evidence to suggest that the Tribunal’s decision record is inaccurate insofar as it summarises the applicant’s claims, evidence and discussions during the hearing. In the circumstances, the Court accepts the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

3. To the extent that Ground 4 refers to the Delegate, this Court has no power to review the Delegate’s decision.

4. Otherwise, the applicant’s broad and unparticularised complaints about unfairness are dealt with in these reasons above in relation to similar complaints.

5. Accordingly, Ground 4 would appear to have no prospect of success.

6. The Tribunal was entitled to have regard to the applicant’s delay in applying for a protection visa, and it was open to the Tribunal to find that the delay was not consistent with the applicant having a genuine fear of persecution for reasons of IKT practice. The Tribunal put to the applicant its concerns about his failure to apply for protection until 15 months after his student visa was cancelled. The Tribunal noted the applicant’s response that he was only a student and did not know the law, and only slowly came to understand his options. The Tribunal did not accept that explanation. That finding would appear to have been open to the Tribunal for the reasons given.

7. The Tribunal also had regard to the applicant’s claims of having engaged in IKT practices in Australia and accepted that he had attended a temple in Campsie from time to time from 2014. However, in light of the credibility concerns the Tribunal had in respect of the applicant’s evidence, in the absence of corroborating evidence, the Tribunal was not satisfied that the temple in Campsie is an IKT temple. That finding would appear to be open to the Tribunal on the evidence before it for the reasons it gave. 

8. The Tribunal also had regard to the applicant’s claim that he would be arrested at the airport in China if returned because of his family’s record and because he had sent some books back to China. The Tribunal accepted that IKT is banned in China, and that genuine IKT adherents may face some risk of harm. However, the Tribunal did not accept that the applicant faced harm for such a reason in circumstances where it did not accept that the applicant is a IKT adherent. 

9. The applicant has not otherwise identified any jurisdictional error on the part of the Tribunal, and none is apparent on the face of the Tribunal’s decision record. The applicant’s complaints appear more to be a disagreement with the findings and conclusion of the Tribunal, thereby inviting merits review, which this Court cannot undertake. (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

10. In the circumstances, the applicant’s applicant for judicial review of the Tribunal’s decision has so little prospect of success as to render reinstatement of no utility. 

11. In the circumstances, having regard to the lack of utility in the applicant’s substantive application, and a totally inadequate explanation for his failure to attend the directions hearing, the Application in a Case filed on 17 October 2017 should be dismissed with costs.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 February 2018