DLC18 v Minister for Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 173
Federal Circuit and Family Court of Australia
(DIVISION 2)
DLC18 v Minister for Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 173
File number(s): SYG 1837 of 2018 Judgment of: JUDGE LAING Date of judgment: 10 March 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant Protection (Class XA) (subclass 866) visas – where the Tribunal declined to accept the applicants’ core factual claims on the basis of its adverse credibility findings – whether the Tribunal was biased – whether the applicants were denied procedural fairness – limitations of the Court’s powers on judicial review – application dismissed. Legislation: Migration Act 1958 (Cth) ss 425, 425A, 426A, 426(1A) Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 2 March 2023 Place: Sydney Solicitor for the First Applicant The applicant appeared by video-link with the assistance of an interpreter Solicitor for the Second Applicant No appearance Solicitor for the First Respondent Ms K. Evans (Sparke Helmore) appeared in person Solicitor for the Second Respondent Submitting appearance, save as to costs ORDERS
SYG 1837 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DLC18
First Applicant
DTB18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
10 MARCH 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the first respondent’s costs fixed in the amount of $7,328.
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 LAING
INTRODUCTION
Before the Court is an application for review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Protection (Class XA) (Subclass 866) visas (protection visas).
Background
The applicants are citizens of the People's Republic of China (China). The first applicant (Applicant) is the mother of the second applicant (Son). They arrived in Australia in 2014 on schools sector and student guardian visas.
On 29 August 2014, the applicants applied for protection visas.
The Delegate refused the application on 24 August 2015.
The applicants applied to the Tribunal for review of the Delegate’s decision on 17 September 2015. The Applicant attended a hearing before the Tribunal on 2 March 2018. The hearing was not attended by her Son.
On 6 June 2018, the Tribunal affirmed the Delegate’s decision.
the TRIBUNAL’s decision
The Tribunal observed that the Applicant’s Son had not attended the hearing to which he had been invited by the Tribunal. The Tribunal decided to make its decision on his review without taking further action to enable him to appear before it, pursuant to s 426A of the Migration Act 1958 (Cth) (Act) (at [8]).
The Tribunal accepted that the Applicant and her Son were citizens of China (at [9]). However, the Tribunal raised several concerns regarding the credibility of the Applicant’s claims and evidence, including:
(a)inconsistencies regarding when the Applicant claimed to have signed a compensation agreement regarding the expropriation of her land by the government (at [31]);
(b)inconsistencies and omissions about where and when the Applicant claimed to have petitioned the government about the requisition of the land (at [32]-[35]);
(c)inconsistencies and omissions regarding the Applicant’s claimed detention prior to going to Beijing (at [36]-[40]);
(d)discrepancies in the Applicant’s story about what happened in Beijing (at [41]-[47]);
(e)belated and varying claims that had been provided regarding what had happened to the Applicant’s two sons and sister (at [48]-[58]);
(f)the Applicant’s failure to mention her earlier claims that she had been called into the police office and monitored to the Tribunal, despite queries capable of eliciting this evidence (at [59]);
(g)inconsistency in the Applicant’s evidence regarding what had happened to the compensation money offered in respect of her land (at [60]); and
(h)inconsistent and problematic evidence regarding whether the Applicant was in hiding at her aunt’s place in Beijing before coming to Australia (at [61]-[64]).
Having regard to the above, the Tribunal reasoned as follows (footnotes omitted):
66.The Tribunal finds [the Applicant] is not a reliable witness and rejects the majority of her evidence. It does not accept her claims, including those made on [her Son]’s behalf, that they have suffered harm in the past and fear harm from the Chinese government in the future.
67.Despite its concerns about her credibility, the Tribunal is willing to give [the Applicant] the benefit of the doubt about the land appropriation. Based on independent information it accepts that it is not unlikely her rural property was expropriated and demolished by the government for development purposes in August or September 2013. It is also possible that some of the farmers in her village and other affected villages petitioned against the resumption of the land and/or the compensation paid.5
68. However, in light of [its] finding about [the Applicant]’s credibility the Tribunal rejects all the other claims. Although some farmers may have petitioned the government over the confiscated land, the Tribunal does not accept [the Applicant] was one of them. If she were she would not have been such a poor witness and her evidence would have been consistent and believable. The Tribunal does not accept that [the Applicant] refused to sign the compensation agreement or accept the compensation. It does not accept that she petitioned any level of government with or without other farmers and it rejects all the claims of harm that flow from those claims. It does not accept that she was detained or harmed in detention at any time, that she was monitored by police or anyone else, or that her movements were restricted in anyway. It rejects all the claims relating to the trip to Beijing and the gang of thugs in the village. It also rejects all the claims relating to any threats, assaults, or any other harm, against [her Son] and his brother including being harassed in the village or while with [the Applicant]’s sister in [a location]. The Tribunal does not accept [the Applicant] and [her Son] were in hiding before coming to Australia or that there was any reason for them to be in hiding. The Tribunal rejects all the claims of harm suffered in China made by [the Applicant], including those made on [her Son]’s behalf.
69. The Tribunal is satisfied that [the Applicant] and [her Son] will not suffer any harm, let alone serious or significant harm, in the foreseeable future should they return to China. Having rejected all [the Applicant]’s claims, the Tribunal finds that neither she nor her family will be harmed by the government or anyone else in relation to having their land expropriated, for any protesting or petitioning of the government, for not accepting compensation money, or for any other reason.
70. As well as the claims relating to the resumption of the farmland, [the Applicant] also made claims about corruption and equality in China. Although the Tribunal asked [the Applicant] on a number of occasions what she feared if she returned to China, she did not expand on these claims. Except for the claims the Tribunal has already rejected she did not make any claims of harm that she, [her Son], or anyone else has suffered because of corruption or a lack of equality in China. Nor did she raise any claims other than those rejected about how that corruption or inequality might result in serious or significant harm in the foreseeable future. As noted above, it is [the Applicant]’s and [her Son]'s responsibility to specify all particulars of a claim and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist [the Applicant] or [her Son] in specifying, any particulars of the claim, or any responsibility or obligation to establish, or assist in establishing, the claim: s.5AAA. Based on the information provided by [the Applicant] the Tribunal finds it is not satisfied that she or [her Son] will suffer any serious or significant harm because of corruption or inequality in China in the foreseeable future.
71. [The Applicant] gave evidence about being cheated by her migration agent in China in relation to the visas used to enter Australia. This included, among other things, that she continues to owe money. However, she did not make any claims that this situation forms the basis for a claim that she or [her Son] fear serious or significant harm in the foreseeable future in China.
On the basis of the above, the Tribunal found that the Applicant and her Son were unable to meet the criteria for grant of the protection visas. Accordingly, the Tribunal affirmed the Delegate’s decision (at [72]–[80]).
proceedings before this court
The applicants relied upon the following grounds contained in an application filed on 3 July 2018:
Jurisdictional errors were made.
1. Tribunal did not accept my claims without evidence.
2. Tribunal ignored my claim with bias.
3. I was not given enough chances to present my claims.
4.Tribunal did not correctly consider the possibility that we will be harmed if we return to China.
Ground 1
Ground 1 contended that the Tribunal did not accept the applicants’ “claims without evidence”.
However, it is well established that the Tribunal is not required to have “rebutting evidence” in order not to accept an applicant’s claims or evidence: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [65].
In any event, the Tribunal’s reasoning was based upon its assessment of the evidence that was before it. In particular, the Tribunal declined to accept the applicants’ core factual claims on the basis of its adverse credibility findings. Those findings were based upon various inconsistencies and difficulties that the Tribunal identified in the Applicant’s evidence, which are summarised above and provided a logical and probative basis for the Tribunal’s non-acceptance of the applicants’ claims.
For these reasons, ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal “ignored” the applicants’ claims “with bias”.
It is well established that bias is a serious allegation that is required to be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J.
This has not been done. The Tribunal did not “ignore” the applicants’ claims. The claims that were advanced centred around the Applicant’s contention that she had petitioned the government against the confiscation of her land, and that she and her family had been harmed and threatened in result. The Tribunal did not accept those claims, due to the adverse credibility findings that it made and which have been summarised earlier in these reasons. As found above, it was open to the Tribunal to make adverse credibility findings on the basis of the numerous inconsistencies and issues that it identified in the Applicant’s evidence.
There is nothing that has been raised by the applicants, or that is apparent from my own review of the materials, capable of establishing that the Tribunal’s mind was closed to persuasion. Nor have I identified any matter that may cause a fair minded lay observer to reasonably apprehend that the Tribunal may not have brought an impartial mind to the review.
It follows that ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the applicants were “not given enough chances to present [their] claims”.
However, the Tribunal’s procedural fairness obligations were limited by Part 7 of the Act. The applicants were both invited to a hearing before the Tribunal, pursuant to s 425 and 425A. As the Son did not attend the hearing, the Tribunal’s power under s 426A(1A) was enlivened. I accept the Minister’s submission that its exercise was not unreasonable in circumstances where:
(a)the applicants had not responded to the Tribunal’s hearing invitation, which advised the applicants of the effect of s 426A, prior to the hearing;
(b)two SMS reminders were sent to the Applicant’s phone as reminders of the hearing;
(c)the Tribunal wrote to the applicants prior to the hearing requesting the Son’s attendance;
(d)the Applicant attended the hearing;
(e)the claims made on the Son’s behalf were advanced by the Applicant; and
(f)there is no evidence that an explanation for the Son’s non-attendance, or request for a further opportunity to appear, was provided to the Tribunal.
The applicants were additionally provided with a written invitation to comment, after the hearing, on various difficulties in the Applicant’s evidence that had been identified by the Tribunal.
The material before the Court does not demonstrate that the applicants were denied a real and meaningful opportunity to present their case. Nor does it demonstrate that there was some further opportunity to present evidence and/or claims that the Tribunal was obliged to provide, but did not provide, to the applicants.
For these reasons, ground 3 is unable to succeed.
Ground 4
Ground 4 contended that the Tribunal “did not correctly consider the possibility that” the applicants “will be harmed if [they] return to China”.
The applicants have not explained how the Tribunal could be said to have “not correctly” considered their claims in this regard, beyond disagreement with the Tribunal’s decision.
I have found above that it was open to the Tribunal not to have accepted the applicants’ core factual claims, based upon the difficulties in the Applicant’s evidence that it identified in its decision and, in particular, the numerous inconsistencies that it identified in that evidence. Such issues provided a logical and probative basis for the Tribunal’s non-acceptance of the applicants’ claims. The applicants have not demonstrated how that reasoning could be said to have been closed to the Tribunal.
This Court has no power to review the merits of the Tribunal’s decision, nor to overturn it based upon the applicants’ disagreement alone.
Ground 4 is therefore unable to succeed.
conclusion
For the above reasons, no jurisdictional error is demonstrated by the grounds relied upon by the applicants. Nor has any such error been identified upon my own review of the materials.
It follows that I am obliged to dismiss the application. If successful, the Minister sought costs fixed in the amount of $7,328. This was the applicable scale amount at the time that these proceedings were commenced. I accept that this amount is appropriate, having regard to the scale and to the work performed in this matter.
33 I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 7 March 2023
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