CSD16 v Minister for Immigration
[2018] FCCA 677
•21 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSD16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 677 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China because of a land dispute – applicant not believed – whether the Tribunal considered the applicant’s explanations for discrepancies in his evidence considered – whether the Tribunal decision was affected by a certificate issued under s.438 of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.189, 424A, 438, 440 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 CKG15 v Minister for Immigration & Anor [2017] FCCA 938 Minister for Immigration v BJN16 [2017] FCAFC 197 Minister for Immigration v Singh & Anor [2017] HCATrans 107 Minister for Immigration v WZARH (2015) 246 CLR 326 |
| Applicant: | CSD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 428 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2018 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
ORDERS
The application lodged on 21 September 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 428 of 2016
| CSD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 31 August 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the Tribunal’s decision on them are set out in the Minister’s outline of legal submissions.
The applicant, a citizen of China, arrived in Australia on 24 December 2007 as the holder of a student (Class TU) (Subclass 571) visa.[1] On 9 May 2009, this visa was cancelled.[2] On 17 June 2016, the applicant was located by NSW Police and detained under s.189 of the Migration Act 1958 (Cth) (Migration Act).[3] On 29 June 2016, the applicant lodged an application for a protection (Class XA) visa.[4] On form B, the applicant indicated that members of the same family unit who are not in Australia were his father and mother.[5]
[1] Court Book (CB) 15, 22 and 73
[2] CB 73
[3] CB 73
[4] CB 1-41; see also CB 70 and 73
[5] CB 8-9
The applicant’s claims for protection were set out in his visa application.[6] The applicant claimed that in 2007, he and his family were forced out of their home a village in the region of Fuqing City by the village secretary, who then demolished the house and illegally expropriated the land.[7] The applicant further claimed he was falsely imprisoned, as well as threatened and beaten by thugs after he attempted to lodge complaints about the village secretary.[8]
[6] CB 33-35
[7] CB 146, [4]-[5]
[8] CB 147, [6]-[8]
On 21 July 2016, the delegate refused to grant the applicant the protection visa.[9]
[9] CB 70-85
On 26 July 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[10] On 19 August 2016, the applicant appeared before the Tribunal to give evidence and present arguments in support of his visa application.[11]
[10] CB 86-87
[11] CB 129-131
On 22 August 2016, the Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act,[12] advising him that it had before it a number of documents that were included in his 2007 student visa application, namely a family composition document dated 13 December 2007 (family composition document) and a copy of his Household Register booklet (“Hokou”). It explained that the information within these documents contradicted the applicant’s oral evidence at the Tribunal hearing that:
a)he did not have a younger brother; and
b)his family home had been demolished by local authorities in March 2007.
[12] CB 135-137
Noting that this information may impact on the outcome of his visa application, the letter invited the applicant to comment upon it.
In response, the applicant indicated that on account of his family’s “local cultural rites”, his brother had been fostered to a relative. However, so as to avoid any potential penalty from the authorities, the applicant’s brother remained accounted for in his parents’ Hokou, but by his understanding, he was the only child.[13] Insofar as the demolition of the family home was concerned the applicant’s representative suggested that those discrepancies may have arisen because of a “…clerical error or misunderstanding by the person who helped in completing the form...”.[14]
[13] CB 140
[14] CB 141
On 31 August 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.[15]
[15] CB 145-168
Tribunal decision
Having regard to the irregularities that it had identified in the applicant’s evidence, the Tribunal found that the applicant’s claims were not reliable or credible.[16] It described the applicant’s evidence in respect of a number of matters as confused, contradictory, inconsistent over time and in certain aspects, vague, general and not convincing.[17]
[16] CB 160, [72]
[17] CB 155, [52]
In particular, the Tribunal found that the applicant’s claims and evidence inconsistent and contradictory in respect of the following matters:
a)whether or not his family received written notice of the demolition before the men came to his home in February or March 2007.[18] Further, the Tribunal was concerned with the delay in raising this key aspect of the claims;[19]
b)whether or not the applicant’s family were given compensation for the demolition;[20]
c)the purpose of the demolition and why the land was taken from the applicant’s family;[21]
d)where the applicant and his family and relatives were living at various times in 2007:[22] the Tribunal noted that the core and critical aspect of his claim was that his family was evicted from their home in the village and that the house was demolished in March 2007, whereas a family composition document dated 13 December 2007 stated that the applicant resided at a nearby address and his grandparents resided at the house which was allegedly demolished. The Tribunal did not accept the applicant’s explanation that his father signed the family composition document containing the incorrect address and because the applicant claimed the house was demolished nine months earlier;[23]
e)the sequence of events following the eviction of the applicant’s family and how and to whom the applicant complained.[24] The Tribunal did not accept that the applicant’s explanations for these inconsistencies were satisfactory given that these were important matters.[25] Further, the Tribunal found it difficult to understand how and why a 14 year old boy was the person who attempted to agitate a complaint to the leader of the local council or that he would then go to the police and/or the Public Security Bureau in circumstances where his parents and number of other adult family members were present;[26]
f)whether or not the applicant had a sibling: the Tribunal noted that in the family composition document, it was specified that the applicant was the eldest of two sons whereas in his protection visa application and Tribunal hearing, the applicant claimed to be an only child;[27]
[18] CB 155, [53]
[19] CB 159, [68]
[20] CB 156, [54]
[21] CB 156, [55]
[22] CB 157, [60]
[23] CB 157, [61]
[24] CB 158, [62]
[25] CB 158 [64]
[26] CB 159, [65]
[27] CB 159, [69]
The Tribunal was also concerned with the applicant’s significant delay in lodging his application for protection, some nine years after his arrival in Australia which included seven years during which he had no visa. It was also concerned that upon being detained in June 2016 and questioned by the Minister’s Department in relation to his circumstances and whether he had any fears of being returned to China, the applicant did not raise any of the claims advanced in his protection visa application and stated that he was afraid of seeing his family as they did not know about his visa and school problems.[28]
[28] CB 160, [71]
Ultimately, the Tribunal did not accept any of the applicant’s claims in respect of the demolition of his family home, that he attempted to agitate a complaint about the legality of the eviction or that he was harmed by the village secretary or thugs.[29] The Tribunal therefore found that there was no real chance that the applicant would suffer persecution for a Convention reason[30] or that he would suffer significant harm.[31]
[29] CB 161, [75]
[30] CB 162, [76]
[31] CB 162, [78]
The present proceedings
These proceedings began with a show cause application filed on 21 September 2016. The applicant continues to rely upon that application. There are two grounds in it:
1. The Tribunal failed to take into account of the discrepancy of addresses due to the clerical error.
2. The Tribunal failed to take into account of our local religious custom but rather relied on its own presumption or inference. The Tribunal made its own findings without supporting evidence. Namely, I lied about the existence of my brother.
I also have before me as evidence the court book filed on 23 November 2016 and the applicant’s affidavit filed with his application. Exhibit R1 is a letter dated 14 March 2018 from the Minister’s solicitors to the applicant at his address for service. That letter provided a copy of the Minister’s legal submissions and it reminded the applicant of the Court hearing today at 10.15am.
The applicant did not attend today’s hearing in person. The Court was, however, successful in contacting him by telephone. The applicant said he thought he hearing was at 2.15pm. the hearing time was fixed by order 5 made by me on 28 August 2017. The applicant confirmed receipt of the court book but was unsure as to whether he had received the Minister’s submissions. I provided the applicant with the option of a one hour adjournment of the hearing to give him time to come to the city from Toongabbie or a telephone hearing. He elected to proceed by telephone. In view of the uncertainty concerning receipt of the Minister’s submissions, I had the Minister’s solicitor present those submissions first orally. I then invited the applicant to respond.
The applicant is concerned at the Tribunal’s treatment of his explanation concerning his household registration document. He is also concerned at the Tribunal’s treatment of the explanation concerning his brother. While I understand that concern, it does not point to any jurisdictional error. The issues concerning the household registration and the applicant’s brother were but two of a large number of credibility concerns held by the Tribunal. The issues were put to the applicant orally at the hearing by the Tribunal, and also by letter pursuant to s.424A of the Migration Act. The Tribunal expressly considered the applicant’s responses. I see no error in the Tribunal’s approach to those issues.
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced by the applicant.
By Ground 1, the applicant contends that the Tribunal erred because it failed to take into account his explanation that the inconsistent evidence in relation to the address of the applicant’s family in December 2007 had resulted from a “clerical error”.
Similarly, by Ground 2, the applicant contends that the Tribunal failed to take into account the explanation that the applicant’s brother had been fostered out to a relative in accordance with “local cultural rites”.
The two factual matters that are the subject of the applicant’s grounds of review were put to him for comment by the Tribunal in writing pursuant to s.424A of the Migration Act, and in its reasons for decision, the Tribunal expressly referred to the applicant’s response to the identified inconsistencies. In respect of the inconsistency in the address, at [61] of its decision record, the Tribunal reasoned that:
In the context of his claims to be owed protection, the fact of his family home in … being demolished in March 2007 was the key and critical part of his claims, and, in the circumstances, it is difficult to understand how and why his father or his father’s agent who completed the Family Composition document, which was signed by his father on 13 December 2007, would have incorrectly entered the address of his grandparents and listed them as living at a house that had been demolished some nine months earlier.
It thus cannot be said that the Tribunal failed to take into account the applicant’s explanation on this issue.
Similarly, the Tribunal set out, verbatim, the applicant’s response on the issue of his brother in [69] of its reasons for decision. Relevantly, however, the Tribunal having “…carefully considered [the applicant’s] comments and explanations…” found that:[32]
The evidence before the Tribunal indicates that one of two versions of events is correct, and, on one view, neither is favourable to the applicant or gives a positive view of the credibility of his overall claims.
[32] CB 160, [70]
This finding was open to the Tribunal on the material before it and for the reasons it gave.[33]
[33]CQG15 v Minister for Immigration [2016] FCAFC 146 at [36]-[38]
Thus, given the Tribunal’s express consideration of the matters identified in Grounds 1 and 2, both grounds fail. They appear, in essence, to be an attempt to engage the Court in impermissible merits review.
The Minister has also raised the issue of a certificate purportedly issued under s.438 of the Migration Act.[34] The Minister’s solicitor orally presented submissions for the benefit of the applicant relating to that issue. The applicant chose to make no submissions on that issue. I agree with the Minister’s submissions on the certificate issue.
[34] CB 92
The certificate applied to several folios from the Minister’s Department’s file bearing the reference CLF2016/39242 (s.438 certificate).[35] The delegate certified in the s.438 certificate that the disclosure of the documents in the nominated folios (Documents) would be contrary to the public interest because they “contain[ed] information relating to an internal working document and business affairs.” The Documents are reproduced at CB 93-114.
[35] CB 92
In line with Beach J’s reasoning in MZAFZ v Minister for Immigration,[36] the Minister accepts that the s.438 certificate is, on its face, invalid.
[36] [2016] FCA 1081 at [36]–[37]
Further, there is no evidence before the Court to suggest that the Tribunal disclosed the certificate to the applicant, or invited him to comment on the certificate. Nor does the Tribunal’s decision record address the s.438 certificate. On that basis, this matter raises the issues addressed by the Federal Court in Singh v Minister for Immigration[37] and MZAFZ.
[37] (2016) 244 FCR 305. The Minister unsuccessfully sought special leave to appeal from the Full Court’s decision: Minister for Immigration v Singh & Anor [2017] HCATrans 107
However, for the reasons that follow, the present case is distinguishable from Singh and MZAFZ.
First, Singh does not stand for the proposition that every certificate issued pursuant to s.438 must be disclosed to the applicant.[38]
[38]CKG15 v Minister for Immigration [2017] FCCA 938 at [99]
Secondly, the Full Federal Court in Minister for Immigration v BJN16[39] concluded at [63] that while it may be accepted that the non-disclosure of the existence of a s.438 certificate may give rise to a denial of procedural fairness, it does not follow that this will always be the case. The Full Court held that it is necessary to examine all the circumstances and the consequences of the omission for the applicant.[40]
[39] [2017] FCAFC 197
[40] at [63]
In the present case, the s.438 certificate relates to four documents, as follows:
a)compliance client interview record;[41]
b)a detention interview;[42]
c)Minister’s Department document entitled “Family Composition”;[43] and
d)disclosure decision checklist.[44]
[41] CB 93-99
[42] CB 100-112
[43] CB 113
[44] CB 114
Addressing the documents in turn, the contents of the interview material were reproduced in the decision record of the delegate,[45] which the applicant submitted to the Tribunal for the purpose of his application for review of the decision of the delegate.[46] Accordingly, the applicant had access to the information, was on notice of its significance, and had the opportunity to address it in the review.[47]
[45] CB 77
[46]NBKT v Minister for Immigration [2006] FCAFC 195; (2006) 156 FCR 419 at 434–435 [57]–[59]
[47]SZVDC v Minister for Immigration [2018] FCAFC 16 at [72] per Siopis, Logan and Markovic J
By its letter dated 22 August 2016,[48] the Tribunal disclosed to the applicant the substance of the adverse information contained in the third document, entitled “Family Composition”.[49] In so doing, the Tribunal explained the relevance of the information and invited the applicant to comment and respond to the issues it had identified - an opportunity of which the applicant availed himself.[50] Accordingly, in this regard, the certificate’s invalidity did not infect “…the process or procedure adopted by the Tribunal in relation to [the] document” covered by the certificate.[51]
[48] CB 135- 37
[49] Singh at [55]; CKG15 (above); see also SZVVI & Ors v Minister for Immigration & Anor [2017] FCCA 546 at [42]-[43] per Judge Manousaridis
[50] CB 140-141
[51]MZAFZ at [40]; cited in SZVVI (above) at [42]-[43] per Judge Manousaridis; see also CIW15 v Minister for Immigration & Anor [2017] FCCA 1206 at [74]-[77] per Judge Emmett and SZVKA v Minister for Immigration & Anor [2017] FCCA 1199 at [81] per Judge Driver
Insofar as the disclosure decision checklist is concerned, this document lacks any connection to the applicant’s claims and was of “no, or only passing contextual relevance to the review”.[52] It is nevertheless noteworthy that the person preparing that checklist took the view (correctly) that there were no documents to which s.438 applied, rendering the issuing of the certificate totally mysterious. In the absence of any reference to the document by the Tribunal in its decision record, it should be inferred that this document was not considered by the Tribunal to be relevant to its consideration of the applicant’s claims.[53]
[52]AVO15 v Minister for Immigration [2017] FCA 566 at [87]-[89]
[53]BEG15 v Minister for Immigration [2016] FCCA 2778 at [65], upheld in BEG15 v Minister for Immigration [2017] FCAFC 197
Having regard to the content of the documents, and the procedures adopted by the Tribunal in relation to the information purportedly covered by the s.438 certificate, the applicant in this case did not lose an opportunity to put forward information or make representations before the Tribunal.[54] Further, in the above circumstances, knowledge of the existence of the certificate could not have made any difference to the outcome of the review.[55] Accordingly, no jurisdictional error is demonstrated by the issuing of the s.438 certificate. In short, the certificate was an embarrassment that could be safely ignored by the Tribunal, which it did by failing to follow ss.438(4) and 440 in relation to its disclosure of the information purportedly covered by the certificate.[56]
[54]Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
[55] BEG15 (above) at [68]
[56]Minister for Immigration v WZARH (2015) 246 CLR 326 at [57]; AVO15 (above) at [91]; BEG15 (above) at [67]-[68]; CIW15 (above)
I conclude that the decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application the Minister seeks an award of costs fixed in the sum of $6,000. The applicant indicated a wish to obtain legal advice but did not oppose a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 March 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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