CVC16 v Minister for Immigration - [2020] FCCA 1508

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
SZOBN v Minister for Immigration & Citizenship (2010) 119 ALD 260

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 1508
Decision Date: 11 June 2020

CaseChat Overview and Summary

The applicant, CVC16, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the Minister for Immigration's refusal to grant her a Protection visa. The applicant contended that the Tribunal erred by finding inconsistencies in her evidence, failing to adequately consider the harm she would face if returned to China, and experiencing an "interpretation error" during the hearing that undermined her credibility.

The central legal issues before the court were whether the Tribunal's decision was affected by jurisdictional error. Specifically, the court had to determine if the Tribunal's findings of inconsistency in the applicant's evidence, its assessment of the potential harm to the applicant upon return to China, and the alleged interpretation error constituted a jurisdictional error that would invalidate the Tribunal's decision.

Dowdy J found that the applicant's grounds for judicial review did not establish jurisdictional error. The court noted that the Tribunal had identified several significant inconsistencies between the applicant's statutory declaration, her interview with the Department, and her evidence at the hearing. These inconsistencies related to her role in managing her father's restaurant, the circumstances of its closure, her alleged arrest and charges, and her claims for compensation. The Tribunal also considered the applicant's delay in applying for a protection visa after arriving in Australia. Based on these perceived inconsistencies and the applicant's overall credibility, the Tribunal was not satisfied that Australia owed her protection obligations. The court concluded that the Tribunal's reasoning was open to it on the evidence before it and did not amount to jurisdictional error.

Consequently, the application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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; andd)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. 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.