DFT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 178

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 178

File number(s):	SYG 2276 of 2017
Judgment of:	JUDGE DRIVER
Date of judgment:	3 February 2021
Catchwords:	MIGRATION - Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China – applicant’s fear found not to be well funded – general grounds of review – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss 36, 422B
Cases cited:	Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Number of paragraphs:	26
Date of hearing:	3 February 2021
Place:	Sydney
The Applicant appeared in person
Counsel for the Respondents:	Mr G Johnson
Solicitors for the Respondents:	Mills Oakley

ORDERS

SYG 2276 of 2017

BETWEEN:

DFT17

First Applicant

DFU17

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

3 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application is dismissed.

3.The First Applicant pay the First Respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.

REASONS FOR JUDGMENT

(revised from transcript)

JUDGE DRIVER:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).  The decision was made on 22 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants’ protection visas.

2. There were two applicants before the Tribunal who were a husband (applicant) and wife (second applicant), both applicants sought judicial review of the Tribunal decision.  The applicant told me today that his wife has since returned to China.  The purpose of that return appears to have been that the child of the family is now of school age and the second applicant needed to return to China to care for him.

3. However, the applicant also told me that his wife has commenced divorce proceedings in China.  That leads me to doubt that the second applicant continues to play any active role in the case.

4. Background facts relating to this matter are otherwise set out in the Minister’s submissions filed on 30 March 2020, which I adopt.

5. The applicant is a citizen of the People’s Republic of China.  On 2 November 2015 the applicant and the second applicant, made applications for protection visas.  The second applicant did not advance her own claims for protection, but sought a visa as a member of the applicant’s family unit. The applicant’s protection claims were set out in a statement accompanying the visa application[1].  The applicant claimed to fear harm from authorities in China who had detained and tortured him in the past in connection with actions he had taken to have the authorities investigate the death of his father in September 2009.  The applicant claimed that his father was killed by five or six individuals who came to his family’s home to have his parents sign a demolition agreement.

   [1] Court Book (CB) 64-65

6. On 6 May 2016 the delegate refused to grant the applicants a visa[2].  The applicants applied to the Tribunal for review.  The Tribunal issued a number of invitation to the applicants to appear before it to give evidence and present arguments.  Ultimately the Tribunal invited the applicants to appear at a hearing scheduled for 19 May 2017[3].  The applicants responded to the invitation[4]. The applicants appeared at the hearing, accompanied by their representative[5].

   [2] CB 183

   [3] CB 241

   [4] CB 245

   [5] CB 248

   TRIBUNAL’S DECISION

7. On 22 June 2017 the Tribunal affirmed the decision under review[6].

   [6] CB 255

8. The Tribunal found that the applicant had a subjective fear of harm, but that the fear of harm was not well-founded[7].  The Tribunal accepted the applicant’s evidence that following the death of his father in September 2009 he asked the police and other officials to investigate the death of his father, but that the police and officials did not accept that his father’s death resulted from a beating that arose from his refusal to sign a demolition order.  The Tribunal further accepted that the applicant was subsequently questioned by the local police, was visited by the village leader and a group of people who threatened him to stop pursuing his enquiries. It accepted he was beaten by the group of people, and that he was detained in Beijing and then in his home town. The Tribunal found that since October 2011 the applicant had taken no further action seeking to investigate his father’s death, other than writing some articles[8].

   [7] [41]-[54]

   [8] [45]

9. The Tribunal did not accept that the applicant was detained in his home town for a month in September 2012, September 2013 and September 2014 as he claimed[9].  The Tribunal found it implausible that the applicant voluntarily returned to his home town in those months to speak with the police, in circumstances where he had previously been detained and was threatened with further detention if he did not give up his request for an investigation into his death, and in circumstances where his evidence was that he realised by October 2011 that his requests to have his father’s death investigated were futile. The Tribunal found the applicant’s claims in this respect to have been exaggerated. The Tribunal also did not accept the applicant was visited by two police officers in another location in September 2012, due to inconsistencies in the presentation of the claim[10].

   [9] [46]

   [10] [47]

10. Given the passage of time since the authorities showed any interest in the applicant, the Tribunal considered the chances of the applicant being seriously harmed on return to China to be remote[11]. The Tribunal noted the applicant’s evidence that despite having written articles there was no reaction to those articles by the authorities[12].

    [11] [48]

    [12] [49]

11. The Tribunal concluded that the applicant did not satisfy s 36(2) of the Migration Act 1958 (Cth) (Migration Act), and for similar reasons found that he was not owed complementary protection under s 36(2)(aa) of the Migration Act.

12. These proceedings began with a show cause application filed on 19 July 2017.  The applicant continues to rely upon that application.  There are four unparticularised grounds in it:

    1.AAT is not treating me with honesty and fairness.

    2.AAT doesn’t take my case very seriously.

    3.AAT was asking me the same questions again and again even after I answered the questions.

    4.AAT was trying to confuse me and discredit me on purpose.  This is not fair.

13. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 7 December 2017.  Only the Minister filed written submissions in advance of today’s hearing.

14. The matter was originally in the docket of Judge Barnes but her Honour transferred the matter to me on 13 March 2019.  The matter was further delayed due to the COVID-19 pandemic in April last year.  In the circumstances, the applicant has had a substantial period of time to prepare for today’s hearing.

15. The applicant initially denied receipt of the Minister’s submissions.  It appears that the submissions were emailed to the applicant to his nominated email address on 30 March 2020.  A further copy was emailed by the Minister’s solicitors to the applicant at the same email address yesterday.  The applicant acknowledged receipt of that document but said that he had not read it as he does not read English.

16. The applicant accepted an invitation from me for the Minister to present his oral submissions first and for the applicant to respond.  The hearing proceeded in that way.  When I called on the applicant to make his own submissions, he said that if he was not believed there was nothing he could do.

17. The applicant asked several questions concerning the reasons of the Tribunal and pointed out the potential complications in moving employment and household in China due to the household registration system.  However, as I pointed out to the applicant, on his own evidence he had lived and worked away from his home town in China previously.

18. I accept the Minister’s submissions that there is nothing to indicate that the review conducted by the Tribunal in this case was not in accordance with the requirements of the Migration Act. Neither, to the extent relevant, is there an indication of any legal error under the general law.

19. The Minister’s submissions address the grounds of review advanced.  I agree with those submissions and adopt them.

20. Each of the pleaded grounds appears to be a variation of a broader complaint of a denial of procedural fairness.  First, the applicants contend that the Tribunal “is not treating me with honesty and fairness”. Secondly, that the Tribunal “doesn’t taken my case very seriously”. Thirdly, that the Tribunal asked the same questions again and again ever after an answer was provided. Fourthly, that the Tribunal “was trying to confuse me and discredit me on purpose. That is not fair”.

21. The grounds do not establish error by the Tribunal. The Tribunal’s duties to afford procedural fairness to a review applicant are substantially limited, and as set out in Division 5 of Part 7 of the Migration Act[13]. The Tribunal invited the applicant to appear before it to give evidence and present arguments, and he did so.  The Tribunal records in its decision record in some detail the exchanges that took place between it and the applicant, and it records the evidence the applicant gave in support of his claims[14].  The applicant was on notice of the issues of concern to the Tribunal, and he had an opportunity to address those concerns. For instance, the Tribunal records, in its decision record[15], that it put various concerns to the applicant for comment, such as the apparent contradiction between his written and oral claims concerning the attendance of two police officers at his work in September 2012[16].

    [13] Section 422B

    [14] [35]-[37]

    [15] [37]

    [16] [37(a)]

22. Contrary to the applicant’s assertion, the Tribunal did not attempt to discredit the applicant. For the most part the Tribunal found the applicant to be an honest witness, and it accepted his claims of having experienced harm in the past. The Tribunal found critical elements of the applicant’s claims to be implausible (which was a question of fact for the Tribunal to determine in its jurisdiction), and it was this implausibility that led the Tribunal to be unsatisfied that the applicant’s fear of harm in the future was well-founded. Further, to the extent the Tribunal questioned the applicant about the veracity of some parts of his claims, this was to ensure the applicant had a real and meaningful opportunity to respond to the Tribunal’s concerns[17].

    [17] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]

23. There is no indication in the decision record that the Tribunal did not take the case seriously, or properly assess the applicant’s claims on their merits. The Tribunal performed its task appropriately, and in accordance with its obligations under the Migration Act. No denial of procedural fairness can be made out.

24. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  It follows that the decision is therefore a privative clause decision and the application must be dismissed.

25. In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $5,400.  I declined to make any costs order against the second applicant, as she has returned to China and has not taken an active part in the proceedings.  The applicant was concerned that the amount sought was “a lot of money” but, as I pointed out to him, it is significantly below scale.

26. I will order that the first applicant pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       10 February 2021