Daz19 v Minister for Immigration
[2020] FCCA 509
•9 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAZ19 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 509 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) ss.424A, 424AA |
| Cases cited: CGQ15 v Minister for Immigration (2016) 253 FCR 496 SZBYR v Minister for Immigration (2007) 81 ALJR 1190 SZGUP v Minister for Immigration (2008) 100 ALD 518 Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 Minister for Immigration v SCAR (2003) 76 ALD 56 |
| First Applicant: | DAZ19 |
| Second Applicant: | DBA19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL SERVICES |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2040 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2020 |
REPRESENTATION
| First Applicant appearing in person |
| Solicitors for the Respondents: | Ms K. Pieri of HWL Ebsworth |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2040 of 2019
| DAZ19 |
First Applicant
DBA19
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
Background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 15 July 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants who are a wife and husband. The background facts concerning their claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 19 February 2020.
The first and second applicants are a wife and husband (respectively) and are citizens of China who arrived in Australia on 13 September 2019 as the holders of Visitor (FA-600) visas.
On 8 December 2014, the applicants applied for Protection (Class XA) visas.[1] The first applicant made claims in relation to the application. The second applicant applied for the visa as a member of the first applicant's family unit. He did not make separate claims of his own for protection.[2]
[1] Court Book (CB) 1
[2] CB 30
The first applicant claimed that she and her husband and their family members are disciples of Yiguan Dao, a religion.[3] She claimed that in connection with her adherence to Yiguan Dao, she, her husband and her family were persecuted as follows:[4]
a)her father was marginalised, monitored and compelled to retire earlier than the normal retiring age;
b)after being caught listening to Yiguan Dao sermons by Chinese authorities, the first and second applicants were kept in custody for two days;
c)after being caught worshipping Yiguan Dao at home during the 2014 Spring Festival, the first applicant was arrested by the security police, imprisoned for three days, "punished, maltreated, abused and insulted" and had all her Yiguan Dao related possessions confiscated; and
d)to exert pressure on the applicants' family, the local Chinese authorities threatened and molested the second applicant's mother, making her "fall ill with outrage".
[3] A branch of Daoism (Taoism)
[4] CB 20-23
The first applicant claimed that to leave China, she and the second applicant bribed some officials. In Australia, they attended a "Tianyun Tao Temple". The applicants believe that the situation for them in China has deteriorated since they left.[5]
[5] CB 23
The first applicant attended a protection visa interview with the Minister's delegate on 16 December 2015. She confirmed at that interview that her husband did not have claims of his own and is a dependant applicant in her protection visa application. She also discussed her claims with the delegate in greater detail.
On 5 February 2016, the delegate refused the protection visa and notified the applicants of the same via post.[6] The delegate observed that the first applicant was not a satisfactory witness, noting significant elements of her testimony to be contradictory and lacking in specific detail. On this basis, the delegate did not accept that the first applicant was a Yiguan Dao follower or that she had any fear of returning to China. The delegate found that the first applicant did not meet the refugee or complementary protection criterion.
[6] CB 75 - 97
On 10 March 2018, the applicants applied for review of the delegate's decision by the Tribunal.[7] They attached a copy of the delegate's decision to the application. The applicants also provided photos and testimonies from two Australian citizens, attesting to their attendance at a temple.[8]
[7] CB 100 - 101
[8] CB 110 - 116
On 16 November 2018, the applicants were invited to attend a hearing before the Tribunal.[9] Both applicants appeared before the Tribunal to give evidence and present arguments on 20 December 2018, with the assistance of their representative.[10]
[9] CB 120
[10] CB 134 - 137
On 15 July 2019, the Tribunal dismissed the application for review and notified the applicants of its decision.[11]
[11]CB 142 - 159
Tribunal decision
Like the delegate, the Tribunal found that the first applicant was not a credible or reliable witness and found her evidence to be implausible and unconvincing.[12] These general adverse credibility findings were premised on:
a)eleven inconsistencies, implausibilities and/or insufficiencies in the applicants' respective evidence;[13]
b)country information indicating that Yiguan Dao adherents were no longer persecuted in China.[14]
[12]CB 148 at [21]
[13] CB 148-154 at [22] - [62]
[14] CB 154-155 at [63] - [69]
The Tribunal did not accept that either of the applicants were Yiguan Dao practitioners in China and did not accept any claims that flowed from this.[15] The Tribunal accepted that the applicants had been attending a Yiguan Dao temple in Australia, but was not satisfied that the applicants were genuine Yiguan Dao practitioners.[16]
[15] CB 157 at [77]
[16] CB 157 at [78]
The Tribunal was not satisfied that the applicants' conduct in attending a Yiguan Dao temple in Australia and participating in activities organised by members of that temple was otherwise than for the purpose of strengthening their claims to be refugees, and therefore the Tribunal disregarded that conduct under s.91R(3) of the Migration Act 1958 (Cth) (Migration Act) in its assessment of a well-founded fear of persecution under the Refugees Convention.[17]
[17] CB 157 at [81]
Accordingly, the Tribunal was not satisfied that the applicants were refugees. [18]
[18] CB 157 at [82]
In assessing complementary protection, the Tribunal was mindful that s.91R(3) of the Migration Act does not apply in relation to complementary protection.[19] In any event, the Tribunal was not satisfied in relation to the complementary protection criterion.[20]
[19] CB 158 at [84]
[20] CB 158 at [85] - [87]
These proceedings began with a show cause application filed on 9 August 2019. The first applicant continues to rely upon that application. Under the heading Grounds of Application are the typewritten words, “Please refer to the attachment”. There is, however, no attachment to that application on the Court file. The first applicant made an affidavit which was filed with the application which does set out six grounds under the heading Grounds of Application. The affidavit also contains a brief background. I received the affidavit as a submission.
The grounds of the applicant are thus as follows:
1.The Tribunal erred in its finding without supporting evidence that the first and second applicant were not committed practitioners of Yiguandao or "believer" at her first visit to Australia in September 2014 from China. However, both of the first and second applicants have shown their good understanding and sound knowledge of the religion they have been practicing on for years, as well as given the strong evidence of the significance of their religion and how they have applied it into their daily life with authentic passion and feelings, in particular the harvest of faith.
2. The Tribunal failed to provided the basis in its finding that there have concerns about the applicant's motivations and the genuineness of their claimed Yiguandao faith. Tribunal's assessment of claims and its findings that the first applicant is not a credible or reliable witness for a numerous reasons were inconsiderable and imprudent rather than persuasive and well founded. The inconsistencies described in the decision (first to eleventh) lack of fair-go and consideration for inviting applicants to make a comment or explanation. Especially, the lengthy and tensed hearing created massive stress and objectively and psychologically affected the applicant's capability in giving evidence with a clear mind.
3. The Tribunal failed to consider that there is no requirement to satisfy the Tribunal the applicant was involved in the direct adverse actions taken by the authority in China, the fears of being persecuted is sufficient. Tribunal's finding that there are no substantial ground for believing there is real risk or significant harm if applicants being removed to China are not persuasive.
4. Tribunal failed to disclose the country information on which it relied and the applicant has no opportunities to respond the country information.
5. The Tribunal failed to provide an opportunity for the applicant to respond the adverse information put to her in the hearing
6. The Tribunal ignored the significant evidence, including photo provided by the applicants especially the references given by the Tiguandao temple where the applicants practiced since arrived in Australia, and this is unacceptable and unfairly treated. (errors in original)
The only evidence I have before me is the court book filed on 4 October 2019. The Minister filed pre-hearing submissions for today’s hearing. I invited oral submissions from the first applicant. She made no submissions in relation to the written grounds, but raised a number of other matters.
These were, first, a complaint about the quality of interpretation at the Tribunal hearing on 20 December 2018. When I asked the applicant how she knew there were interpretation problems at the hearing, she responded that her agent, Mr Wang, had told her after the hearing that there were significant problems. The applicant also told me that Mr Wang had tried to intervene during the hearing, but was prevented from doing so.
Further, the first applicant contends that the attitude of the presiding member during the hearing was adverse and, apparently, was suggestive of bias. The first applicant also complained about the duration of the hearing and the absence of a toilet break. I took the first applicant in argument to several pages of the court book bearing upon the hearing. The hearing record confirms at court book 134 that the first applicant and her husband attended the hearing with their agent, Mr Wang and two witnesses.
There was a Mandarin interpreter in attendance for the hearing who holds a NAATI level 3 accreditation. It appears that the hearing ran for a little over three hours, and there is no indication of any break. It is noteworthy at CB 138 that it confirms that after the hearing, or at the hearing, Mr Wang requested on behalf of his clients a copy of the Tribunal’s sound recording of the hearing. That was provided on 20 December 2018.
More significant is an email from Mr Wang to the Tribunal on 21 January 2019.[21] In that email, Mr Wang states that he had no problem in respect of any legal or procedural issue, as the presiding member had mentioned during the course of the hearing. As I pointed out to the applicant, if Mr Wang harboured concerns about the quality of interpretation at the hearing or the attitude of the presiding member, it is most unlikely that he would have sent that email in those terms.
[21] CB 140
It is possible that the email was specifically directed to the issue of a purported non-disclosure certificate, which is referred to by the Tribunal at [71] and [72] of its reasons,[22] however, the agent’s email is more generally expressed. The applicants have had ample opportunity to provide evidence of any asserted unfairness at the Tribunal hearing in the form of a transcript or affidavit from Mr Wang or otherwise. Orders providing that opportunity were made by a registrar on 5 September 2019.
[22] CB 156
On the state of the evidence, as I pointed out to the first applicant, what she has raised from the bar table are no more than bare assertions. In terms of the written grounds, I agree with the Minister’s submissions.
Ground 1
Ground 1 alleges that the Tribunal erred in finding, without supporting evidence, that the applicants were not committed practitioners of Yigun Dao when they came to Australia in September 2014 from China. This is on the basis of the applicants' evidence about their Yiguan Dao practices, which it is said by the applicants to demonstrate a "good understanding" and "sound knowledge" of the religion.
The finding that is relevant to this ground appears at [77] of the Tribunal's reasons:
The Tribunal does not accept that either of the applicants were Yiguandao practitioners in China. It follows that the Tribunal does not accept any of their claims that flow from this. The Tribunal does not accept that either of the applicants was of adverse interest to the Chinese authorities.
The Tribunal rejected the applicants' evidence about their alleged practise of Yiguan Dao on the basis of numerous adverse credibility findings and country information. Findings of credit are traditionally a matter solely within the purview of the Tribunal.[23] That is not to say that credit findings are not susceptible to judicial review on the basis of illogicality and/or irrationality.[24]
[23] Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]-[68]
[24] see, e.g. CGQ15 v Minister for Immigration (2016) 253 FCR 496 at [40]
The deficiency in Ground 1 is that it does not particularise how the credit findings are illogical and/or irrational. The ground appears to simply assert that the applicants' evidence should have been taken as strong evidence of their Yiguan Dao practise. The mere fact that the applicants do not agree with the conclusions arrived at by the Tribunal plainly does not give rise to a jurisdictional error.[25]
[25] SZGUP v Minister for Immigration (2008) 100 ALD 518 at 523
The ground further notes that the applicants have been practising Yiguan Dao in their daily life, and states in particular “the harvest of the faith”. While the Tribunal does not refer to the “harvest of the faith”, there is nothing in the materials that were before the delegate or the Tribunal to suggest that the applicants practised the “harvest of the faith”, and the applicants have not provided any evidence that this was submitted at the Tribunal hearing. Further, and in any event, the Tribunal noted at [58] that it accepted that the applicants attended a Dragon Boat Festival in 2016 and attended an event in 2015 where vegetarian food was served to monks. It is therefore evident that the Tribunal did consider the applicants' participation in Yiguan Dao events. Accordingly, the first ground cannot be made out.
Ground 2
The first aspect of this ground raises an allegation that there was no basis for the Tribunal's adverse credit findings. It is said that the Tribunal's 11 credit findings were "inconsiderable and imprudent rather than persuasive and well-founded". This is a request for merits review which is impermissible and cannot give rise to jurisdictional error.
If this ground were taken as an assertion of illogicality and/or irrationality, it suffers from the same issues as ground 1. Namely, the illogicality and/or irrationality is not particularised.
The second aspect of this ground alleges that there was a lack of a “fair go” to invite the applicants to comment or explain the inconsistencies.
As noted above, the applicants were invited to attend a hearing and appeared before the Tribunal pursuant to s.425 of the Migration Act, at which the Tribunal discussed the claims for protection and concerns arising from inconsistent evidence and country information. The first applicant was also invited to comment under s.424AA of the Migration Act on information.[26]
[26] CB 149 [31] and CB 150 [40]
The Tribunal's obligations under s.424AA of the Migration Act otherwise did not arise at any point throughout the hearing, as the Tribunal's findings were based on the inconsistencies raised by the first applicant's evidence during the Tribunal hearing, inconsistencies between the first applicant's evidence and her protection visa application, and country information. In any event, the Tribunal recounted on numerous occasions that it raised its concerns about the evidence to the applicants at the hearing and the applicants were invited to comment.[27] The Tribunal further stated at [67]:
The Tribunal informed the applicants that it had a number of concerns in relation to their case particularly in relation to the credibility of the claims. The Tribunal noted that there were many inconsistencies in their evidence (as above).
[27] see CB 149-154 [34], [37], [45], [53], [63] and [64]
The third aspect of this ground asserts that the “lengthy and tensed hearing” created “massive stress and objectively and psychologically affected the applicant's capability in giving evidence with a clear mind”. It is unclear if this is a reference to the first or second applicant's capacity to give evidence.
In Minister for Immigration v SCAR,[28] the Federal Court found that the applicant was not in a fit state to represent himself before the Tribunal, meaning that the invitation he received under s.425 of the Migration Act was not a meaningful one, even though the Tribunal was not aware that the applicant was not in a fit state.[29]
[28] (2003) 128 FCR 553
[29] SCAR at [41] - [42]
In NAMJ v Minister for Immigration[30] the Federal Court found that it seems likely that the legislature intended that a Tribunal hearing should be able to proceed notwithstanding some measure of psychological stress and disorder, however there is a point, as established in SCAR at [52] at which an applicant's psychological state renders a Tribunal hearing a nullity. The Court in NAMJ further stated at [58]:
I do not consider it wise to attempt to formulate an exhaustive test of 'fitness' to take part in a Tribunal hearing. It seems likely that no single standard of fitness will be appropriate for all cases. Fitness in the relevant sense will, in my view, require to be assessed having regard to the particular circumstances of each case including the intended purpose of the hearing before the Tribunal and the support and assistance available to the applicant.
[30] (2003) 76 ALD 56
No evidence was provided either to the delegate or the Tribunal to suggest that either applicants' psychological circumstances affected their capacity to participate in the Tribunal hearing. Further, on the face of the Tribunal decision, it does not appear that the either applicant raised any mental health issues that would affect their capacity to participate in the Tribunal hearing. On its face, there is nothing to indicate from the Tribunal decision that the applicants were not in a fit state to give evidence. The applicants have also not provided any evidence (e.g. a transcript of the Tribunal hearing) to support this ground. Accordingly, the second ground cannot be made out.
Ground 3
This ground appears in part to assert that the Tribunal's finding that the applicants do not meet the complementary protection criterion[31] is "not persuasive". As outlined above, the Tribunal rejected the applicants' material claims on the basis of adverse credit findings. Those adverse credit findings were open to the Tribunal, and the fact that the applicants consider the Tribunal's reasons unpersuasive is beside the point and does not give rise to error.
[31] See CB158 [85]
The other part of this ground appears to assert that the Tribunal considered it necessary for the applicants to have been actually persecuted by Chinese authorities in order for them to meet the refugee and complementary protection criteria as opposed to just having a fear of persecution.
Contrary to this, it is evident from the Tribunal's decision that it not only considered whether the applicants would face harm due to any past experiences, but also whether they would face harm for any other reason if they returned to China. At [78]-[79], the Tribunal accepted that the applicants had been attending a Yiguan Dao temple in Australia, however it was not satisfied that the applicants currently were, or would be of adverse interest to the Chinese authorities because of this.
Further and in any event, the test under the Migration Act is not only that the applicants have a fear of persecution, but that the fear must be well-founded.[32] The Tribunal considered this and found that there was no real chance that the applicants would suffer serious harm for reason of their religion or any other reason if they returned to China now or in the reasonably foreseeable future, and therefore, they did not have a well-founded fear of persecution.[33]
[32] section 36(2)(a) of the Migration Act and Convention Relating to the Status of Refugees opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
[33] CB 157 [82]
In relation to complementary protection, the Tribunal found at [85] that it was not satisfied that there was a real risk that the applicants would suffer significant harm.
The Tribunal's assessment was open to it in view of the Tribunal's rejection of the applicants' claim to be Yiguan Dao practitioners, and in light of country information suggesting that Yiguan Dao adherents were no longer persecuted in China.
Grounds 4 and 5
By these grounds, the applicants contend that the Tribunal erred by failing to put to them for comment "country information" and "adverse information".
When the Tribunal is conducting a review under Part 7 of the Migration Act, the extent of its procedural fairness obligations is confined by Division 4 of Part 7 of the Migration Act. To succeed, the applicants must demonstrate non-compliance with a particular provision of Division 4. Grounds 4 and 5 do not refer to a particular provision but the grounds are in the nature of allegations of breaches of ss.424AA and/or 424A of the Migration Act.
The combined operation of ss.424AA and 424A of the Migration Act is to require the Tribunal to put to the applicants, either orally or in writing, clear particulars of information that it considers would be the reason, or part of the reason, for affirming the decision under review. The way in which the Tribunal puts the information to the applicant is prescribed by the sections.
Sections 424AA and 424A do not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.[34] Accordingly, the Tribunal was not required to put country information to the applicants. In any event, the Tribunal put country information to the applicants to comment.[35]
[34] Section 424A(3)(a)
[35] see CB 154 [63]-[64]
The contention that the Tribunal erred by failing to put "adverse information" to them is unparticularised. The Tribunal's rejection of the applicants' claims was based on inconsistencies in the applicants' evidence and between the applicants' evidence and country information. As outlined above the Tribunal put information to the first applicant under s.424AA of the Migration Act, and as further outlined above, the Tribunal put inconsistencies to the applicants to comment, despite inconsistencies not being information within the meaning of ss.424AA and 424A.[36] Accordingly, the fourth and fifth grounds cannot be made out.
[36] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [18]
Ground 6
By this ground, the applicants allege that the Tribunal failed to consider the material that they gave to the Tribunal for the purposes of the review, namely photographs and two written testimonies.[37]
[37] see CB 110 - 116
The Tribunal considered the photographs and written testimonies at [16], [50] to [55] and [57], and therefore the sixth ground cannot be made out.
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The first applicant claimed impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 March 2020
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