Cud15 v Minister for Immigration

[2016] FCCA 2292

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2292

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.422B, 424A, 424AA, 425

Cases cited:

SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant: CUD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3490 of 2015

Judgment of: Judge Driver

Hearing date: 2 September 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Palte of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3490 of 2015

CUD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 24 August 2016. 

2. The applicant is a male citizen of China born on 29 November 1969.[1] He arrived in Australia on 21 February 2014 as the holder of a subclass 600 Tourist visa.[2]

   [1] Court Book (CB) 11-12

   [2] CB 13

3. The applicant applied for a protection visa on 24 February 2014.[3]  His claims were set out in a statement accompanying the application:[4]

   a)the applicant claimed to be Christian, along with his wife and parents in law;

   b)the applicant claimed that his parents in law were arrested and detained in August 2009 while attending an underground Church gathering;

   c)he also claimed that his wife was arrested and detained in July 2013 for attending underground Church gatherings;

   d)the applicant also claimed that his home was subsequently searched by the authorities and that they found illegal religious materials and evidence that the applicant was a member of the underground Church, which resulted in the applicant also being arrested and detained for 15 days;

   e)the applicant claimed that following his release he and his wife were harassed, which prevented the applicant doing his job properly, and that this caused the applicant to decide to travel to Australia.

   [3] CB 1-40

   [4] CB 30

4. The application was refused by a delegate of the Minister on 4 July 2014.[5]

   [5] CB 50-65

5. The applicant subsequently applied to the Tribunal for review of the delegate's decision on 8 August 2014.[6]

   [6] CB 66-71

6. The applicant gave oral evidence before the Tribunal on 11 August 2015.[7]

   [7] CB 96-97

7. The Tribunal made its decision on 24 November 2015, affirming the decision under review.[8]

   [8] CB 99-108

The decision of the Tribunal

1. The Tribunal concluded that the applicant had fabricated his claims,[9] and consequently did not accept that the applicant, his wife, or his parents in law were Christian, or that they had been persecuted in China.[10] 

   [9] at [48]

   [10] [49]

2. The Tribunal came to this finding having had regard to several inconsistencies in the applicant's oral evidence at the Tribunal hearing, including:

   a)regarding where he lived between 2010 and 2014;[11]

   b)his claim that the reason his wife's sister did not go to Church was because it would cause trouble for her husband, and yet the applicant also claimed that he and his wife stayed with his sister's wife and husband at a time when the authorities were looking for them;[12]

   c)his hospitalisation after purportedly being released from detention in 2013, the timing of which was inconsistent with evidence that the applicant had travelled to Japan.[13]

   [11] at [31]-[33] and [47]

   [12] at [33], [34]

   [13] [38]-[39]

3. The Tribunal also found that the applicant's evidence that his wife attended the same underground Church for 24 years, and yet was not arrested until 2013 (despite the arrest of her parents in 2009), was not consistent with the Church they claimed to attend being an underground Church.[14]

   [14] at [37]

4. The Tribunal also had regard to immigration stamps in the applicant's visa that showed, as accepted in the applicant's own oral evidence, that he had travelled to various countries including Germany, France, Switzerland and Japan. The Tribunal found the applicant's failure to seek protection in those countries, which were parties to the Convention on Refugees, was not consistent with his claim to fear harm in China.[15]

   [15] at [46]

5. The Tribunal, having rejected the applicant's claims, did not accept that the applicant or his wife had suffered serious or significant harm in China because of their religion, or that there was a real chance or real risk of the applicant suffering serious or significant harm in the future for this reason.[16]

   [16] [49]

6. These proceedings began with a show cause application filed on 23 December 2015.  The applicant continues to rely upon that application.  There are two grounds in the application:

   1. At Paragraph 33 in the [Tribunal] decision record; the [T]ribunal member stated: “The applicant’s evidence about where they lived as inconsistent in terms of when they moved to live with his wife’s sister and that the police did not trouble them there.  If the latter was true, that was a very powerful reason why they would have remained there and not return to the other property as he claimed”, which is a part of reasons that the Tribunal relays on in affirming the decision made by the delegate of the Minister.

   However, in accordance with subsection 424AA(1) of the Migration Act, 1958, the Tribunal should have informed me that I would, if I wanted, seek for additional time to respond to this particular concern raised by the Tribunal either by oral submission or in writing. Apparently, the [T]ribunal failed to do so; thereby erring in apply the s.424AA of the Migration Act, which amount to a judicial error.

   Should the Tribunal have granted me additional time to respond, I would provide a detailed submission, outlining reasons as to why relocation in China is not possible.

   2 At Paragraph [48], the Tribunal finds that I have fabricated my claims as I described myself a real Christian and I was delivering materials for my wife and her friend, which is not commensurate with my claims for protection.  Given the significance of discrepancy, the [T]ribunal, again, should put s.424AA of the Migration Act on me and inform me that I have the right to seek for additional time to respond to such inconsistency in my claim; However, the Tribunal affirmed the decision without having given me a chance to respond; therefore, not only did the Tribunal fail to act in compliance with s.424AA of the Act, it also failed to comply with s.422B of the Act, which unequivocally stipulates that the Tribunal should conduct the hearing in a fair and just manner.

7. Both grounds allege a breach of s.424AA of the Migration Act1958 (Cth) (Migration Act). Ground 1 relates to [33] of the Tribunal decision. Ground 2 relates to an unidentified paragraph of the decision, but I believe the paragraph referred to is [48]. The grounds are repeated in an affidavit filed with the application, which I received as a submission.

8. I have before me as evidence the court book filed on 15 February 2016. 

9. In my view, the grounds advanced by the applicant show a misunderstanding. The Tribunal in its decision record at several points states that it discussed perceived inconsistencies in the applicant’s claims and evidence with him at the hearing. The applicant’s argument is that that disclosure did not comply with the requirements of s.424AA of the Migration Act. The applicant’s misunderstanding arises because the Tribunal was not in raising issues of inconsistency with the applicant purporting to make disclosure pursuant to s.424AA. Rather, the Tribunal was seeking to ensure that the applicant understood what would be the issues in the review for the purposes of s.425 of the Migration Act. In my opinion, the Tribunal met its obligation pursuant to that section to provide a fair hearing.

10. The Minister’s submissions make clear that s.424A and hence s.424AA was not engaged in this case in the manner alleged by the applicant. I agree with those submissions.

11. Both grounds appears to assert that the Tribunal was under an obligation to put to the applicant certain inconsistencies in the applicant's evidence pursuant to s.424AA of the Migration Act. The applicant asserts that in failing to do so, the Tribunal has erred.

12. However, it is well established that the Tribunal is not required to put to an applicant its reasoning process regarding inconsistencies in their evidence.[17] This is because however broadly information is defined so as to enliven the Tribunal’s s.424A obligations, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[18]  

    [17] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]

    [18] SZBYR at [18]

13. Considering both of the inconsistencies the applicant asserts should have been put to him, it is evident that each purported piece of information did not, in its terms, contain a "rejection, denial or undermining of the applicant's refugee claims" so as to enliven the Tribunal's s.424A obligations.[19]    

    [19] SZBYR at [18]

14. Rather, in respect of Ground 1, the Tribunal was merely reasoning from the inconsistency in the applicant's decision to stay with his wife's sister, described above, that the actions of the applicant and his family did not appear to be consistent with his stated claims to fear harm.

15. In respect of Ground 2, the Tribunal was similarly reasoning from the applicant's own evidence that he did not attend Church, and merely delivered Christian materials to his wife and friend, to find that the applicant was not a devotional believer in Christ.[20]

    [20] at [48]-[49]

16. Ground 2 also appears to assert that the Tribunal failed to comply with s.422B of the Migration Act. However, the applicant has not provided any particulars (other than as discussed above) as to why he says the Tribunal has not acted in a way that is fair and just. Absent any further particulars, any contention that the Tribunal failed to satisfy any procedural fairness obligations it might have cannot be made out. In this regard, the applicant was invited to, and attended, a hearing before the Tribunal, where the dispositive issues were raised and discussed with the applicant. Although not obliged to under s.424A of the Migration Act, the Tribunal also nevertheless invited the applicant to comment on several of the inconsistencies in his evidence.[21]

    [21] see [34], [35], [39], [47]

17. In his oral submissions, the applicant said that he had been mistreated in China and because of that he could not think straight and had poor memory.  He was unable to say, however, what the Tribunal should have done differently.  There is no indication in the court book of any medical issue having been raised with the Tribunal. 

18. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

19. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

20. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,416.  That was the scale amount at the time the application was filed.  The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

21. 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 $3,416.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 5 September 2016