CVC16 v Minister for Immigration
[2020] FCCA 1508
•11 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVC16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1508 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application –application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – the Applicant asserted that the Tribunal wrongly found inconsistencies in her evidence, did not correctly consider the harm she would suffer if returned to China and that there was an “interpretation error” at the Tribunal hearing which led the Tribunal to doubt her credibility – none of the Grounds asserted by the Applicant establish that the decision of the Tribunal affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424A |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 |
| Applicant: | CVC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2663 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Lambe |
| Solicitors for the First Respondent: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 30 September 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2663 of 2016
| CVC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of China aged 27 years.
By Application filed in this Court on 30 September 2016 she seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 5 September 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 December 2014 refusing to grant to her a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant was granted a Visitor (Subclass 600) visa on 10 July 2013 as a member of a study group of five persons from Shijiazhuang University, although subsequent investigations by the Department of the Minister revealed that there were no students at Shijiazhuang University with the names of those in her study group. She then entered Australia on 12 August 2013 and became an unlawful non-citizen from 12 November 2013, when her Visitor visa expired, until 14 April 2014.
The Applicant applied for the Protection visa on 15 April 2014.
Relevant Law and Criteria Applicable to the Grant of a Protection visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....
Claims for Protection
In short, the Applicant claimed that she had been oppressed, molested and arrested by public and police officials of Gaocheng City in connection with her running of her father’s restaurant there after she had graduated from High School in June 2012. In a Statement (Statement) forming part of her Protection visa application the Applicant claimed as follows:
My father ran a restaurant in Gaocheng City in 2008 and his business was very good. Later, my father was in bad condition. So, I came to look after my father's business after I graduated from high school in June, 2012. Officials in the city often came to our restaurant. They relied on their power and often delayed their payment. When holidays came, officers of Health Bureau came to our restaurant for lucky money. I ever asked my father why we did so. My father said we could not offend them. Otherwise, our business would be closed down. Although I felt very angry, I could not do anything.
In August 2012, the son of the Director of the Health Bureau (Director) got to know our business was profitable. So he asked my father to transfer our business to him; My father refused him. From then, our doom began.
One day in September, Director J, came to our restaurant with two people. They made difficulties for waitress deliberately. After most of a dish was eaten, he complained the dish was too salt and the meat was too tough and requested us to change a dish for them. Upon seeing this, I came to communicate with him. But he held my hand and molested me. I pushed him away. He then abused us and smashed items in my restaurant, which really made our restaurant a mess. I got angry and asked my staff to call police. After the police came, they learned it was Director J and let him go after making a simple record. Later, I asked the police the result. They told me the thing had passed and just let it go. Finally, not only was our damage not compensated, but Director J was not punished. We knew that the police and local government officers were in the same boat. Even though I claimed compensation again, I could not get anything back but would offend them. In view of this, I swallowed my anger.
(emphasis added)
However, it did not end at all. Officers of Health Bureau came to check our restaurant from time to time, and made excuse to fine us. Moreover, hooligans often came to our restaurant to disturb our business. Sometimes they even molest waitresses. Influenced by these, our business got worse and worse. After these things happened, I went to Gaocheng City Discipline Inspection Commission a few times to report Director J abused his power and officials of Health Bureau asked for lucky money. After that, the windows of my house were smashed by unknown people at middle night. We have not got result by far after reporting police. The problems we reported were not resolved. Director J even told me triumphantly that all your report letters were in my hand and how you could fight against me.
On 18 November, a woman came with her friends in my restaurant. She put dirty stuff in the dish intentionally. Then she called the Health Bureau that there was unclean stuff in her dish. The woman was recognized to be Director J’s wife. After a while, a few officers of Health Bureau came to inspect. Then, they said the sanitary condition in our restaurant was unqualified and my restaurant would be ordered to close down. I could not hold my temper and quarrelled with the officers. Somebody called the police. After the police came, they realized that the situation was out of control. So, they arrested me and two of my staff and took us to Gaocheng City Public Security Bureau. The police said we interfered with public function and should be detained. The police also hint me if I gave up my business, I would be fine. Hearing this, I got very angry and said you were extorting me. Because I did not yield, I was detained. Instigated by the police, I was beaten by prison bully. I was released after we days.
I realized that government officers shield one another and ordinary people do not have human rights. I only wanted to do my business, but government officers made trouble to me from time to time, which caused me not to survive.
After being released, I then knew that my restaurant was sealed up. Because our business was closed down, we suffered a big loss. Our restaurant was taken over by Director J's son. I hated this dark society so I chose to leave China. I hope Australia government can take serious consideration of my protection visa application.
Further, the Applicant noted in her Protection visa application form that she had been charged with an offence in China on 18 November 2012, being an “Interference with public function”.
Then in a Statutory Declaration sworn by the Applicant on 4 July 2014 (Statutory Declaration) she claimed in part as follows:
My family’s restaurant had to be closed down in November of 2012 because of being persecuted by Chinese officials. We suffered big economic loss. Since then, my father’s physical condition has been worse. My family has paid a lot to treat him. So I can not get support from my family financially.
I want to get a job to maintain my life. I also want to pay off my debts owed to my friend. I plead to consider my poor financial situation and allow me to work legally. I will appreciate your kind consideration.
Decision of Delegate
The Applicant attended an interview with the Delegate on 2 December 2014.
From pages 5 to 7 of her Decision Record the Delegate set out a number of perceived inconsistencies between evidence given by the Applicant in the interview with her and written documents created or produced by the Applicant. These matters led the Delegate to find that the Applicant was not a convincing witness and that she had made untrue claims and produced bogus documents concerning her background at the time that she had applied for the Protection visa.
Accordingly, the Delegate found that the Applicant was not a credible witness and did not accept her claims that:
a)her father’s restaurant was targeted for takeover by a senior corrupt bureaucrat;
b)she protested this behaviour and was jailed and / or charged and convicted of an offence;
c)she protested either by claiming compensation or making other forms of complaint; and
d)she would continue with compensation claims or any other protest action if she returned to China.
In the result the Delegate was not satisfied that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention criterion or the complementary protection criterion and refused to grant to her a Protection visa.
Decision of Tribunal
The Applicant lodged an application for merits review with the Tribunal on 26 January 2015. She appeared before the Tribunal on 10 August 2016 to give evidence and present arguments together with the assistance of an interpreter in the Mandarin and English languages.
By a letter sent pursuant to s.424A of the Migration Act 1958 (Cth) (the Act) dated 17 August 2016 the Tribunal gave to the Applicant information that would be the reason, or part of the reason, for affirming the decision of the Delegate and invited her to respond to or comment on that information, in the following terms:
·In your protection visa application dated 15 April 2014 and during your interview with an officer from the Department of Immigration held on 2 December 2014 you said that you had managed your father’s restaurant from the time you finished high school in June 2012 until the restaurant was closed. At the hearing you said that you had worked there as a waitress, but you had not managed the restaurant.
·In you protection visa application dated 15 April 2014 you said that the Director of the Health Bureau came to the restaurant in September 2012, abused you and smashed items, but the police would not arrest him and you were not able to obtain compensation. During your interview with the officer from the Department of Immigration you said that the Director’s son came to the restaurant on 18 September 2012 and argued with your father who called the police, but the police did not arrest the Director’s son. You also said that you had never asked for compensation.
·In you protection visa application dated 15 April 2014 that you were arrested and charged with interfering with the public function of the police in November 2012. While you repeated the claim that you had been arrested in later submissions you said that you had never been charged with any offence.
·In you protection visa application dated 15 April 2014 you said that you said that your restaurant had been closed and taken over by the son of the Director of the Health Department in November 2012. During your interview with the officer from the Department of Immigration in December 2014 you said that the restaurant was closed sometime before January 2013 and that from the time it was closed until the time you left China you stayed at home looking after your father. At the hearing you said that the restaurant continued to operate at the time you left China and that your father still ran it, but he was only a puppet.
·This is relevant information because the inconsistencies in your evidence could cause the Tribunal to conclude that you have not provided credible evidence relating to the problems you and your father faced in relation to the restaurant your father owned in China.
·According to the records of the Department of Immigration you entered Australia on 12 August 2013 but you did not apply for a protection visa until 14 April 2013 [sic].
·This is relevant information because your failure to seek protection in a timely manner after arriving in Australia could cause the Tribunal to conclude that you are not genuinely fearful of serious harm in China.
(emphasis added, and s.424A letter)
By letter forwarded to the Tribunal on 28 August 2016 the Applicant responded to the s.424A letter in which, amongst other matters, she denied asking for compensation and seemingly for the first time claimed that the son of the Director had forced her father to help him and teach him how to run the restaurant, otherwise he “would rape me and make me live worse than die, make me unable to live as a decent person. He would destroy my life.”.
In its Decision Record the Tribunal summarised:
a)from [11] – [17] the Applicant’s written claims as made in the Statement;
b)from [18] – [31] the Applicant’s claims and evidence as made at the interview with the Delegate;
c)from [34] – [42] the Applicant’s claims and evidence as made at the hearing before the Tribunal, and noted at [42] that the Applicant had also claimed at the Tribunal hearing that she feared that she would be sexually assaulted by the Director’s son because he was a hooligan and “had threatened to give her a big disgrace”; and
d)from [43] – [52] the Applicant’s response to the s.424A letter.
From [53] – [60] of its Decision Record the Tribunal then set out its analysis and consideration of the Applicant’s claims to protection. At [53] it summarised those claims and noted that it did not accept them in the following terms:
[53] In essence the applicant claims that she will be sexually assaulted, denied work and suffer other forms of serious or significant harm from the people who took away her father’s restaurant and their supporter in local government. She claims that these people harassed her and her father while she was in China and have continued to harass her father since she left the country. She fears that they will seek to harm her if she returned to China because they might fear she will try to regain control of the restaurant or publish something about them on the internet. For the following reason I do not accept any of these claims.
At [54] of its Decision Record the Tribunal correctly identified that the claim that her father’s restaurant was taken over by the son of the Director was central to the Applicant’s case. In this connection the Tribunal was concerned with the Applicant’s inconsistent accounts given over a period of time in relation to the alleged takeover. In particular, as pointed out in the s.424A letter (see emphasised bullet point reproduced at [14] above), the Applicant’s evidence in this connection had been as follows:
a)in the Statement she had claimed that her father’s restaurant was closed down and taken over by the Director’s son in November 2012;
b)as disclosed by the audio recording of the interview with the Delegate she had claimed that her father’s restaurant was closed sometime before January 2013 and that from the time it was closed until she left China for Australia in August 2013 she had stayed at home looking after her father: see [18] and [28] of the Decision Record; and
c)at the Tribunal hearing she had claimed that her father’s restaurant continued to operate as a restaurant at the time she left China in August 2013 and that her father was still involved in running it, but only as a puppet and that it had closed about 2 months after she had left China: see [37] of the Decision Record.
The Tribunal at [55] – [56] of its Decision Record rejected the Applicant’s explanation of these inconsistencies given in her response to the s.424A letter in the following terms:
[55] When asked to comment on these inconsistencies in the Tribunal’s letter of 17 August 2016 [the Applicant] claimed that the restaurant had been taken over in November 2012, but her father had been forced to return to work until January 2013 after which he signed over the restaurant, but still continued to assist the new owner when required. I do not accept this explanation, which is clearly an attempt to reconcile her earlier inconsistent accounts of what had occurred.
[56] If the applicant’s father had been forced to continue working for people who took away his restaurant until sometime after she left China because they were threatening to sexually assault or otherwise harm her, I have no doubt that she would have explained this in at least broadly consistent terms in her earlier submissions.
At [57] of its Decision Record the Tribunal set out its conclusion as follows:
[57]This alone is sufficient for me to reject the applicant's claim that she fled China because of problems she and her father faced because the son of a local official wanted to take over their restaurant. However, it is not the only problem with her claims. For example, as noted above, she has also provided contradictory accounts of her role in the restaurant and who was involved in the altercation which led to her being detained and when this occurred (September or November 2013).
At [58] the Tribunal concluded that the Applicant’s claims about her father’s restaurant being taken over “were concocted by the applicant to support her application for protection in Australia”.
Finally, at [60] of its Decision Record the Tribunal rejected the Applicant’s explanation of why she took some eight months after she had arrived in Australia to make her claims to protection, in the following terms:
[60]Finally, despite claiming that she had fled China because she feared serious harm the applicant did not apply for protection until some eight months after she arrived in Australia and five months after her visitor visa expired. She claims that she did not apply before this because she was fearful and isolated and had nobody to help her. I do not accept this application. There are many Chinese speaking people and organisations in Sydney who could have assisted her and I believe that she could and would have sought them out if she genuinely feared persecution in China. I find her failure to apply for protection in a more timely fashion a strong indication that she does not fear serious or significant harm in China.
Accordingly, the Tribunal rejected the Applicant’s claims to protection under both the Refugees Convention criterion and the complementary protection criterion and affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Grounds of Attack on Decision of Tribunal in this Court
The Applicant relied upon the following Grounds, which are verbatim as follows:
1. Jurisdictional error has been made.
Tribunal makes some improper decisions
In my written statement, it is not stated that I claimed compensation. I also gave oral statement I did not claim compensation. But Tribunal held that there is inconsistence between written and oral statement.
Tribunal rejects my claim that I fled China because of my problems my father and I faced in terms of unsound opinion.
2. Tribunal did not correctly consider I would be seriously harmed after I return to China.
3. There exists interpretation error as to my role in the restaurant, which leads the Tribunal to doubt my credibility of my claim.
At the hearing the Applicant was unfortunately not able to make any meaningful submissions in support of an argument that the Tribunal had committed jurisdictional error.
Consideration
Ground 1
This Ground fails in the first instance on a factual basis because the Applicant did in fact assert in the Statement that she had claimed compensation, in the following terms:
Finally, not only was our damage not compensated, but Director J was not punished…Even though I claimed compensation again, I could not get anything back but would offend them. In view of this, I swallowed my anger.
(emphasis added)
See the Statement reproduced at [6] above. A fair reading is that the Applicant was there claiming that she had in fact made two separate claims for compensation.
I note that as part of its role in considering and analysing the credibility of the Applicant’s claims to protection the Tribunal was entitled to consider and take into account the fact that at the interview with the Delegate the Applicant had, inconsistently with her Statement, stated that she did not claim compensation, as recorded by the Delegate in her Decision Record as reproduced at Court Book page 55:
She is referred to her written application where she said that she had claimed compensation, she stated that she did not claim compensation.
and at Court Book page 56:
When she was asked to give some details about her claim that she "claimed compensation again" she responded that she had not claimed compensation.
This Ground also fails for the further reason that the Tribunal did not rely on any inconsistencies in relation to claims for compensation in coming to its decision to affirm the Delegate’s decision. There is no mention of, or reliance on, the issue of compensation by the Tribunal in its analysis, consideration and rejection of the Applicant’s claims from [53] – [60] of its Decision Record.
Otherwise, this Ground seeks to argue with the Tribunal’s findings and invoke merits review, which is not available in this Court.
Accordingly, Ground 1 does not establish jurisdictional error.
Ground 2
This Ground is cast in generalised and unparticularised terms and appears to argue with the Applicant’s rejection of her claim and fails to establish jurisdictional error.
Ground 3
This Ground is generalised, unparticularised and suffers from a degree of ambiguity. If the expression “interpretation error” is meant to be understood as asserting a “misunderstanding” by the Tribunal, then this Ground simply argues with the factual findings of the Tribunal, and without identifying any “misunderstanding” this Ground fails to establish jurisdictional error. I note that no misunderstanding is apparent from my reading of the Tribunal’s Decision Record.
Alternatively, the expression “interpretation error” could be taken as asserting that the interpreter at the Tribunal hearing did not accurately interpret the discussion and conversation at the Tribunal hearing, and at the hearing in this Court that is how the Minister understood this Ground to be directed.
Nevertheless there is no evidence at all before the Court with a tendency to impeach the standard of interpretation and translation at the Tribunal hearing. The hearing extended over a period of some one and a quarter hours, and it was conducted with the assistance of an interpreter in the Mandarin and English languages who held a Professional Level NAATI Level 3 accreditation.
Further, the Applicant has not tendered a transcript of the Tribunal hearing, although she accepted the obligation to do so by consent order 3 as made by the Court on 21 October 2016. She has not tendered any expert evidence supporting a finding that the standard of interpretation or translation was inadequate, such that she was effectively prevented from giving evidence at the Tribunal hearing.
Finally, there is no indication in the Decision Record of the Tribunal that at any point there was a problem with interpretation or translation at the Tribunal hearing.
Accordingly, there is no evidence before the Court which could lead to a finding that the Tribunal hearing was infected by any inadequate interpretation or translation, in accordance with the principles summarised by North J in SZOBN v Minister for Immigration & Citizenship (2010) 119 ALD 260 at [27]:
[27]It is established that an appellant who alleges that there was inadequate interpretation amounting to a breach of the obligation contained in s 425(1) of the Act must show that:
(a)The standard of interpretation at the Tribunal hearing was so inadequate that he or she was, effectively, prevented from giving evidence at the Tribunal; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
Questions of fact and degree are involved, and a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole: Appellant P 119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] and [22]; Tobasi v Minister for Immigration & Multicultural Affairs [2002] FCA 1050; VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 ; and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212. The judgment in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 is often cited as one of the foundation authorities on the question of the adequacy of interpretation. That judgment should now be read in view of the recent academic criticism in A Hayes and S Hale, “Appeals on Incompetent Interpreting” (2010) 20 Journal of Judicial Administration 119, at 127.
Ground 3 fails to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 11 June 2020
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