DKE22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 486

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DKE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 486   

File number(s):	MLG 2309 of 2022
Judgment of:	JUDGE VASTA
Date of judgment:	8 June 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	81
Date of last submission/s:	23 May 2023
Date of hearing:	23 May 2023
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the Respondents:	Ms Roberts, Solicitor
Solicitor for the Respondents:	Mills Oakley

ORDERS

MLG 2309 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DKE22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	8 JUNE 2023

THE COURT ORDERS THAT:

1.The application filed 17 October 2022 be dismissed.

2.The applicant pay the first respondents costs of and incidental to the application fixed in the sum of $6,100.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE VASTA

1. I heard this matter on 23 May 2023.  The applicant appeared before me assisted by an interpreter.  I heard the matter completely and came to a decision following all of the evidence being presented before me and all of the submissions having been made.  I then proceeded to give my decision ex tempore.  I was pausing, during the delivery of the decision, to enable the interpreter to interpret what it was that I was saying. 

2. When I was coming towards the end of my decision, the interpreter inexplicably dropped out of the Teams telephone meeting.  There were many attempts over the next 15-20 minutes to get the interpreter back online.  These efforts were unsuccessful.  I decided to continue to deliver the ex tempore judgment though the applicant would no longer be able to have the decision interpreted to him. 

3. I did not deliver the actual orders but told the applicant, and the representative of the Minister, what the decision would be and what orders I would be eventually making.  I did this because I felt it was better to deliver a written decision so that the applicant would have the ability to have the whole decision interpreted to him by someone else, if that was what he chose to do.  I was also cognisant that any time within which the applicant had to appeal my decision, would run from the moment that I made the order. 

4. I felt that it was not appropriate for the applicant to have not fully understood the judgment I had given, but still having to make a decision as to whether to appeal while he was awaiting the delivery of a judgment from me.  I have now had the benefit of the transcript of my reasons provided to me by Auscript and I publish the following reasons and orders which take effect from today, 8 June 2023. 

5. On 29 September 2022, the Administrative Appeals Tribunal (“AAT”) affirmed a decision not to grant the applicant, DKE22, a protection visa.  On 17 October 2022, the applicant asked this Court to review that decision.

6. The background to the matter is this. The applicant is a citizen of China. He came to Australia on 4 March 2008 on a student visa. He was accompanied by his mother who was, at that time, his guardian. 

7. About a month to six weeks after arrival in this country, the mother applied for a protection visa. The applicant was not included in that application by the mother. The mother’s application was refused. The AAT affirmed that refusal, and the Courts have not allowed any of her applications for review.

8. With regard to this applicant, his student visa expired on 15 March 2010. After the expiration of the student visa, the applicant remained in Australia, and he was, technically, an unlawful non-citizen. The applicant was located by New South Wales Police on a random road-stop on 20 February 2017.  Once he was identified he was taken into immigration detention.

9. A week later, on 27 February 2017, the applicant applied for a protection visa, which is the subject of these proceedings. 

10. In that application there were, in effect, two grounds for his fear of persecution. The first claim was that his parents had been converts, in China, to the Local Church known as the Shouters. The Shouters are a Christian offshoot whose existence is not particularly welcome by the Chinese Authorities. Once the applicant’s mother was baptised into this church, the applicant claimed that his mother assisted with the secret transfer of 4000 copies of the Shouter’s version of the Bible. This activity was, to say the least, frowned upon by the Chinese Authorities.

11. The applicant claimed that in February 2008, there were other people from that church who were arrested by the Public Security Bureau (PSB). When those persons were interrogated, they named the applicant’s mother as being someone who had assisted them. The applicant said that his mother has now been accused of supplying illegal materials of an evil cult from one city in China through to another city in China.

12. The applicant said this occurred about a month before he and his mother left China and came to Australia. The applicant said that his father, who had remained in China, was forced to leave their hometown in order to escape from persecution by the Chinese Authorities.  This persecution was because of what the mother was alleged to have done. The applicant said that his father spent many years moving from place to place and working as a construction labourer.

13. The applicant claimed that his father lacked legal status, and, because of this, he was exploited, bullied and oppressed by his employers. He said that his father’s financial difficulties were the reason that he stopped his studies in Australia, as he could no longer pay for education.

14. The applicant said that the applicant’s younger sister was just over three years old when the father had to move away.  The applicant said that his father went into debt so that he could financially support the sister as well as the maternal grandparents (who had taken care of the sister). The applicant said that his father had to borrow a great amount of money to pay for his sister’s medical costs and, as a result, was in debt for 600,000 Chinese monetary units. This is the genesis of the second claim.

15. The applicant said that his father has not returned to the hometown because he has to hide to avoid his creditors. He said that those creditors are loan sharks, and that they now threaten the father with harm and they harass and threaten the grandparents.

16. All of this means that the applicant says that he cannot return to China. The first reason is that he is afraid that he, just like his father, will be implicated by the crimes that are alleged against his mother. Secondly, the applicant said that he would be implicated by his father’s debts because Chinese tradition says that a son must pay his father’s debts. He said that this will mean that he will be targeted by loan sharks, and he will suffer significant harm by them if he returns to China.

17. The applicant said that his mother was treated unfairly by the Immigration Department. He said that this was a reason he had not previously lodged his own application for protection.

18. The AAT had quite a deal of information before it. It had the applicant’s interview with authorities when he was taken into detention on 20 February 2017. They had his application dated 27 February 2017. They had all of the material that the applicant had given to the delegate. They had the interview that the applicant had given to the delegate.

19. The AAT hearing occurred on two dates. The Tribunal had the advantage of allowing the applicant to think about material that had been put to him by the Tribunal during the adjournment. The Tribunal also had other documentation given to them by the applicant during the adjournment, as well as evidence given to the Tribunal from the cousin of the applicant.

20. The Tribunal went through everything that the applicant had said and all of the material before it.

21. The applicant made a complaint to the Tribunal that the Tribunal had, in effect, already made up their mind.  The Tribunal thoroughly explained what it is that they do and why it is that they have not made up their mind until all of the evidence is presented to them. Having said that, in the end, the Tribunal had five particular issues with the credibility of the applicant.

22. The first of these was the inconsistent claims as to the applicant’s own Christian beliefs.  When the applicant was interviewed by the delegate, he said these things:

    (1)he is not a Christian and has no interest in Christianity;

    (2)he has never been to a church service, either in Australia or back in China; and

    (3)his fear of returning to China is not based on his being a Christian, but, rather, he would be persecuted because of his association with his parents, particularly his mother’s activities.

23. However, the Tribunal had evidence that, at the mother’s protection visa application back in 2008, the applicant gave evidence that he, the applicant, was a Christian and that he had attended a church service. The Tribunal put that inconsistency to the applicant, and the applicant said that the evidence that he gave in the mother’s application was not correct. The Tribunal found that this was a matter where the applicant had provided untrue evidence, or false evidence, to a previous Tribunal, because the applicant was of the view that to provide the false evidence was in his mother’s best interest.  The Tribunal found that that was not of minor significance.

24. The second aspect, which caused the Tribunal to have doubts regarding the credibility of the applicant, was the inconsistent claims he made as to why he remained in Australia after his student visa ceased in March 2010.

25. As I have previously noted, the applicant was an unlawful non-citizen from the date that his student visa expired until he was found by New South Wales Police in the routine traffic stop.  The applicant was interviewed that day, that is, 20 February 2017.

26. Departmental officers asked the applicant why he had stayed in Australia after the cancellation of his student visa, and he told them that he stayed in Australia because he wanted to make some money.  Later on in that interview, he did say that he had subsequently found out that his father owed money to loan sharks, but he did not say that this was a reason that he did not return to China after he ceased study. 

27. When he was interviewed after putting in his application for a protection visa, the applicant told the delegate that he stayed in Australia because he feared that he would be persecuted in China because of his mother’s religious activities.

28. The applicant was asked about this inconsistency, and he said that he did not see that there was any inconsistency. He said that by the time he stopped his studies, it was apparent to him that he could not go back to China because his mother was a wanted person because of her religious activities. The Tribunal was not satisfied as to this explanation. 

29. The Tribunal also had regard to the fact that the applicant applied for a bridging visa, and, when asking for a bridging visa, he said that the reason for it was that he had stayed in Australia because he wanted to earn some money and that he had some matters to deal with before returning to China. When he was asked what those matters were, he said that he had assets in Australia, and when asked to specify what those were, he said that he owned a car worth more than $50,000, and he had between $20,000 and $30,000 in savings that he wanted to secure. 

30. He was asked, in that same interview, what he would have done if he had not been located by New South Wales Police in the routine traffic check, and he said that he would have just found someone to marry so that he could apply for a visa.

31. The applicant told the Tribunal that he was nervous when he was taken into detention after being found by New South Wales Police, and that this nervousness was the reason that he said what he did. The Tribunal did not accept that excuse.

32. The third inconsistency was in relation to his own, that is, the applicant’s own, financial circumstances and whether he had a capacity to repay some of his father’s debts. The applicant told the Tribunal that the debt that his father owed had grown from the 600,000 Chinese monetary units to now 1 million Chinese monetary units. The applicant had told the delegate that he had not repaid any of the debt, and the applicant confirmed to the Tribunal that this was still the case.

33. The applicant said that he did still feel that obligation to pay his father’s debts, but he had been unable to remit any funds to China as any monies earned by him over the years, in which he was an unlawful non-citizen, were only sufficient to pay for his basic living expenses. He said that since he had been released from immigration detention in March 2017, all of his expenses have been met by his cousin. His cousin also gave evidence to the Tribunal to that effect. 

34. However, the Tribunal looked at evidence that the applicant had given as to his phone repayments, as well as other material in his bank account.  It would seem that the applicant had paid about $7000 in phone bills on a plan. The Tribunal questioned how that was paid, and the applicant said it was from his own financial resources. That was inconsistent with the claims that the cousin had met all of his expenses.

35. The Tribunal also noted, in his own bank accounts, he had an entry for rent, and this was money deposited into his account and identified as rent. The applicant said that this was money that he had loaned a friend, and that the friend was repaying the money that he had loaned. The Tribunal said that that was inconsistent with the applicant having only enough money to subsist upon, because this meant that the applicant had surplus money that he was able to loan.

36. The applicant simply said that this was the last of the savings that he had managed to save before he was detained in early 2017, and that he loaned that to this other person. The Tribunal then put to the applicant information that it had from the Department of Home Affairs.  This information was that from May 2009 to December 2019, the applicant had remitted in excess of $480,000 offshore. The Tribunal said that this information appeared consistent with what the applicant had first said when he was detained – that he had remained in Australia to make money.

37. The information was also relevant because it called into question what he had said about not repaying any money that had been allegedly owed by his father to loan sharks because he had no financial capacity to send any money to China. The applicant asked for some time to consider his response. When he returned, the applicant said that he did not understand where the amount of $480,000 had come from and that if he had this huge amount of money he would have returned to China. 

38. The fourth inconsistency, that the Tribunal noted, were the inconsistent reasons given for how it was that the father came to incur debts to loan sharks. In the departmental interview for the protection visa application, the applicant said that the father’s debts were caused because his business had failed. He was asked what sort of business the father had, and the applicant claimed that his father had a factory.

39. The Tribunal said that this was inconsistent with what the applicant had said – that the debts were caused by the fact that the father was a labourer in the construction industry, had a lack of steady employment, was exploited and that the father had to cover the sister’s medical expenses. 

40. The applicant, when this was put to him, said that the father invested money that he did not have, and this meant that he had insufficient money to meet family expenses. The applicant reiterated that this is why he ceased his studies in Australia. The Tribunal noted that that explanation did not address the concern that the Tribunal had as to why the father incurred debts, and the Tribunal considered that this aspect also was an inconsistency.

41. The fifth inconsistency was one that was in regard to the applicant’s evidence in relation to his observation of his parents’ religious practices. The sect that the parents belonged to is known as the Shouters because the participants are shouting when they pray. When the applicant was asked about what he had seen as to the way in which his mother prayed, he gave evidence that there are many ways to pray and he is not sure of them all as he is not a Christian. 

42. He said that all he saw was his mother put her hands together and heard her shouting. The previous response, that he had given, was that he had observed his parents pressing their hands together and mumbling something.

43. The Tribunal put to the applicant the difference between those two responses. The applicant said that, when he described the mother as mumbling, that would mean that he was seeing her from far away, and that the mumbling was the same as shouting if he had been closer. The Tribunal was not persuaded by this explanation.

44. The Tribunal said that all of those inconsistencies were of concern, but when they considered them cumulatively, they raise substantial doubts about the credibility of the applicant’s claims, such that the Tribunal said that they were not satisfied that the evidence, in support of his claims, could be relied upon.

45. The Tribunal said that they did not accept the claims of the applicant, and they found that he was not credible in his claims.

46. The Tribunal also took into account, information provided from DFAT. DFAT’s information was that any person on a “watch list”, who was a person of concern to the PSB or other authorities in China, would have difficulty renewing their passport. The applicant had given evidence that he had renewed his Chinese passport back in 2020 and that he had no difficulty at all.

47. The Tribunal put the country information to the applicant with regard to what he had previously said. The Tribunal said that this information would indicate that he was not on any watch list, and therefore he could not be at risk from Chinese Authorities. The applicant said that he believed that the authorities know his situation and would allow him to get a passport so that, if he returns to China, they could arrest him. 

48. Having regard to all of these findings the Tribunal then looked at whether it was that they were satisfied as to the applicant meeting the criteria for protection. The Tribunal made a number of findings at paragraph 83. Those findings can be summarised in this way.

49. Firstly, the Tribunal did not accept that the applicant faced a real risk, or real chance, of serious harm if he returns to China as a consequence of his parents’ membership or affiliation with the Local Church Shouters Christian section.

50. Secondly, the Tribunal did not accept that the applicant faces a real risk, or real chance, of serious harm if he returns to China now, or in the foreseeable future, as a consequence of his implication to his mother, whom is said to have been wanted by the PSB because of her involvement in the secret transfer of 4000 copies of their version of the Bible.

1. Thirdly, the Tribunal did not accept that the applicant faces a real risk, or real chance, of serious harm if he returns to China now, or in the foreseeable future, as a consequence of his mother remaining in Australia because as a Christian she feared what would happen to her if she returned to China. This was because the Tribunal was not satisfied the evidence supported a finding that the applicant’s mother’s claim, to be a Christian, is credible.

2. Fourthly, the Tribunal did not accept that the applicant’s father had to leave the family home and conceal his identity as a consequence of the mother’s involvement with the transfer of 4000 copies of their version of the Bible.

3. Fifthly, the Tribunal did not accept that the applicant faces a real risk, or real chance, of serious harm if he returns to China now, or in the foreseeable future, as a consequence of debts owed by his father to creditors in China, with those creditors including loan sharks.

4. The Tribunal was not satisfied that the evidence supported a finding that the applicant’s father has unpaid debts or that the applicant’s father, maternal grandparents or the applicant are at risk from loan sharks as a consequence of unpaid debts.

5. And, lastly, the Tribunal did not accept that the applicant faces a real risk, or real chance, of serious harm if he returns to China now, or in the foreseeable future, as a consequence of loan sharks who are owed money by the applicant’s father, or police or any other government officials connected with loan sharks.

6. The Tribunal did not accept that any entity would be detaining the applicant and harming him physically, or forcing him to do hard labour or harvesting his bodily organs. This was because the Tribunal was not satisfied that the evidence supports a finding that the applicant’s father has unpaid debts or that the applicant was at risk from the father’s creditors. 

7. The Tribunal went through and found that there were no other residual claims that they had to consider in the review application. Having made those conclusions the Tribunal found that the applicant did not satisfy the refugee criteria.

8. The Tribunal then considered the complementary protection criteria. The matters that had been considered in the assessment of the refugee criteria were, in effect, the same matters that had to be considered for the complementary protection criteria. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there was a real risk that he would suffer significant harm.  For all of those reasons, the Tribunal found that the applicant did not meet the criteria for complementary protection.

9. For those reasons, the Tribunal affirmed the decision not to grant the applicant a protection visa. 

10. In the application for review before this Court the applicant had five grounds. I will go through them seriatim. 

11. Ground 1:

    I firmly believe that the current tribunal has never, ever given me a real chance to give my evidence or present my argument arising from my case.  The tribunal’s hearings are just formalities, and the tribunal have, in fact, made its decision beforehand.

12. The applicant, in this ground, is alleging that there was no consideration given to what it is that he had said. A consideration of the reasons of the Tribunal shows that that could not be the case. The Tribunal was very thorough in looking at all of the claims that the applicant had made.

13. When it was clear that the applicant was saying that he did have other evidence, the Tribunal gave him the opportunity of an adjournment, and during the adjournment the applicant did provide the material, as well as presented his cousin to give evidence at the resumed hearing.

14. It would seem to me that the Tribunal made sure that they understood the applicant’s claims, and they did thoroughly assess them. The unfortunate consequence for the applicant is that the Tribunal simply did not believe him. That conclusion was one that was well and truly open on the evidence before it. The tribunal has given very clear and cogent reasons as to why it is that they did not accept his evidence.

15. Having looked at those matters it cannot be said that the Tribunal had made their decision beforehand, because their decision is based upon information that was given to them at the hearing. For that reason, there is no merit in ground 1 and it fails.

16. Ground 2:

    I firmly believe that the current tribunal is of a strong bias against me due to my immigration history in the past.

    It is trite to say that bias is a very serious allegation to make, and over the last number of years it has become extremely fashionable to allege bias against any decision-maker who makes a decision that a litigant does not like or accept. There is nothing here that would in any way show that the Tribunal member had shut off their mind to whatever evidence the applicant was putting before it, such that they had already determined to find against him. 

17. For many of the reasons I spoke of in the last ground, the evidence before this Court does not indicate anything that could make a person apprehend bias. It may well be that the applicant has an immigration history that does not lend itself to an easy acceptance of a claim that he needed protection, in effect, from the time that he came to Australia, but that is a necessary part of the circumstances upon which a Tribunal must make a critical assessment of whether it accepts the claims or not. For those reasons I am of the view that there is no merit in ground 2.

18. Ground 3 is that the current Tribunal has ignored, or failed to consider, the most important evidence before it. The applicant says that another Tribunal, who granted him a bridging visa, understood and accepted what it was that he was saying, and for that reason they granted him a bridging visa. The applicant says that, since being granted the bridging visa and having been released from immigration detention, he has been honest and careful to abide by the conditions imposed on him by the bridging visa.

19. All of that may be so, but it was not for the Tribunal to look at what the applicant has done on his bridging visa or whether he should have been on the bridging visa. The Tribunal was tasked with assessing whether or not the applicant had satisfied them as to the requirements of a protection visa. All of the important evidence was considered.

20. The argument that the applicant has is that the Tribunal ignored or failed to consider that evidence because it found against him. The argument he makes is that, if the Tribunal did not ignore that evidence – if the Tribunal did actually consider that evidence - then he would have been given a visa.

21. That is not logical, and it really is an illustration of the applicant not understanding the Tribunal’s role to critically assess what information it has before them. What an examination of the reasons of the Tribunal show, is that the important evidence was neither ignored nor was it not considered. For those reasons ground 3 fails.

22. The fourth ground was that:

    The current tribunal, even, does not have necessary knowledge of BVE. 

    The fact is that, whether the applicant was on a bridging visa or not, is simply irrelevant to the consideration of the assessment of whether the applicant has satisfied the requirements for the protection visa. There was no need for the Tribunal to have a necessary knowledge of it because, whatever had occurred with the bridging visa, could never have been something that was sufficient to either weigh in favour of the grant of the protection visa or a decision not to allow the applicant to have a protection visa. For this reason ground 4 fails.

23. Ground 5 is that:

    The current tribunal never, ever gave me a real opportunity to respond to or comment on the information that the tribunal used to make the findings.

    Again, an examination of the reasons of the Tribunal make it clear that, not only did they give the applicant the opportunity, they even allowed the applicant to adjourn for a short time to consider his response to the information. The Tribunal gave the applicant an adjournment of quite a number of days, or weeks, so that he could present more information to the Tribunal to explain what it was that he was claiming.

24. This action does not bespeak of a Tribunal not wanting, or actually giving, the applicant a real opportunity to respond or comment on information. Again, the examination of the reasons of the Tribunal show that the Tribunal went above and beyond ensuring that the applicant had every opportunity to make whatever comment it wished. For that reason, ground 5 fails.

25. The applicant appeared before me unrepresented but assisted by an interpreter.

26. The applicant reiterated to me the concerns that he had. They were that he thought that the AAT had a bias. He thought that the AAT had not listened to him or his arguments. He said that he provided all the evidence, including his cousin, but the AAT just didn’t consider it. He said he provided everything that they asked, but they rejected it. He said that they just did not believe it.

27. I explained, to the applicant, that this was part of the job of the Tribunal – that they were to critically assess the evidence before it, and it was up to them whether they believed a person or not.  As long as the ultimate decision they made was something that was open to them, then that was not a jurisdictional error, and that was, really, the end of the matter. The applicant asked me, somewhat rhetorically, then:

    Well, what am I to do about that, then?

    It may have been a rhetorical question, but I gave the applicant the answer: that this was the system that has been set up to decide whether persons obtain visas or not. 

28. I told the applicant that if a person wants a visa, then they must make application. It is for the Minister to decide whether they believe the things that applicants have claimed and whether or not they accept, or are satisfied, that the criteria have been fulfilled. That is the system. If they make a decision and a person is not happy, then they have the rights given to them to go to the Administrative Appeals Tribunal, but that is it. That is the system. 

29. Once the Administrative Appeals Tribunal has given a finding as to credibility, then, unless an examination of the evidence shows that such a finding was simply not open, it will not amount to a jurisdictional error, whether or not another person in the position of the Tribunal would have come to the same decision or not.

30. The real position is that the Tribunal have made a decision, and the applicant simply does not agree with it. That may be well and good, but it does not amount to a jurisdictional error.

31. For those reasons I find that there has been no jurisdictional error on the part of the Tribunal.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       8 June 2023