DMF18 v Minister for Home Affairs

[2019] FCCA 1020

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMF18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1020

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424A

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

Randhawa v Minister for Immigration (1994) 52 FCR 437

Applicant: DMF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1874 of 2018

Judgment of: Judge Driver

Hearing date: 15 April 2019

Delivered at: Sydney

Delivered on: 15 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Pieri of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1874 of 2018

DMF18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 June 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 8 April 2019.

3. The applicant, a male citizen of China, arrived in Australia on 15 January 2014 as the holder of a class TU (subclass 573) student visa.  On 1 September 2014, the applicant applied for a protection visa, attaching a statement to his application (visa application statement).[1]

   [1] Court Book (CB) 1

4. The applicant’s claims for protection can be found at [14] to [36] of the decision of the Tribunal.[2]

   [2] CB 136

5. The applicant attended his scheduled protection visa interview on 3 September 2015 (Department interview).[3]

   [3] CB 56

6. On 29 September 2015, the delegate refused to grant the visa.[4]  This was on the basis that:

   a)the applicant’s claims were not credible as his statements at interview lacked verifiable details and fact, and could only be described as scant.  The applicant’s evidence also contained many inconsistencies and implausibilities;

   b)because the applicant’s claims were not credible, it was not necessary for the delegate to assess whether his claimed fear was for a Convention reason and whether the harm feared amounted to persecution; 

   c)the delegate was not satisfied the applicant had a real chance of being persecuted, meaning the applicant’s fear was not well founded; and

   d)the applicant’s claims of being unable to obtain employment, not having a house to reside at, having a large debt to repay prior to returning to China and suffering from loss of face as a result of separation from his wife have no nexus with the Convention grounds.

   [4] CB 62

7. The delegate was also not satisfied that the applicant met the complementary protection provisions.

8. On 29 October 2015, the applicant sought review of the delegate’s decision by an application to the Tribunal.[5]  The applicant also attached a copy of the delegate’s decision to his review application.

   [5] CB 77

9. On 14 February 2018, the Tribunal wrote to the applicant, inviting him to attend a hearing.[6]  The applicant returned a signed “Response to hearing invitation form” on 26 February 2018.[7]

   [6] CB 107

   [7] CB 109

10. The applicant appeared before the Tribunal on 12 March 2018 to give evidence and present arguments with the assistance of a Mandarin interpreter.[8]

    [8] CB 113

11. On 17 March 2018, the applicant sent an email to the Tribunal attaching a statement describing the content of a video news report in Chinese which aired on 15 June 2016.[9]  In a further email on 17 March 2018 and an email on 18 March 2018, the applicant sent what appear to be links to further news reports.[10]  The applicant sent a further email on 18 March 2018 attaching the same statement describing the contents of a video news report that was sent on 17 March 2018.[11]

    [9] CB 115

    [10] CB 119 to 120

    [11] CB 122

12. On 20 April 2018, the Tribunal wrote to the applicant inviting him to comment or respond to certain information which it considered could be the reason or part of the reason, for affirming the decision under review.[12]  Namely, the Tribunal invited the applicant to comment on inconsistencies between:

    a)the Department interview and visa application statement concerning the compensation that his parents received for the acquisition of their farmland;

    b)the Department interview and Tribunal hearing concerning the financial support of the family;

    c)the Department interview, visa application statement and Tribunal hearing concerning the apartment in Tieling City;

    d)the Department interview and Tribunal hearing concerning the 20 Mu of land in the neighbouring village; and

    e)the Department interview and Tribunal hearing concerning whether the applicant’s grandmother lives in the apartment in Tieling city.

    [12] CB 126

13. On 14 May 2018, the applicant sent a response to this invitation via email (applicant’s written submission).[13]

    [13] CB 131

14. On 8 June 2018, the Tribunal notified the applicant of its decision made on 7 June 2018 affirming the decision of the delegate not to grant the visa.[14]

    [14] CB 132

Tribunal’s decision

1. The Tribunal summarised the applicant’s claims and evidence,[15] acknowledging at the hearing that the applicant submitted various photographs but did not make any submissions to explain the photographs,[16] and a video of a news report in Chinese.[17]  The Tribunal acknowledged that the applicant sent a submission on 17 March 2018 describing the content of the video.[18]  The Tribunal also noted that it considered the applicant’s written submission.[19]

   [15] CB 136 to 141 at [14] to [36]

   [16] At [11]

   [17] CB 135 at [12]

   [18] CB 135 at [12]

   [19] CB 135 at [13]

2. The Tribunal stated that, at best, the applicant’s fear if he is returned to China was that he will suffer:[20]

   a)imprisonment (and possibly some other unspecified harm) from either Faku county or a person with an interest in land confiscation in Xidaquanyan village because he will pursue compensation for the Xidaquanyan land and the 20 Mu of land in the neighbouring village from the government;

   b)harm for similar reasons to why his uncles were jailed, either in relation to the confiscation and poisoning of the 20 Mu of land or reporting it to the municipal news; and

   c)harm because someone is looking for his father.

   [20] CB 142 at [40]

3. The Tribunal expressed concerns about whether the applicant was a truthful witness and consequently, rejected the vast majority of the applicant’s claims, and did not accept that he or his family have or will suffer any significant or serious harm at all.[21]

   [21] CB 142 at [41]

4. The Tribunal noted that there was inconsistent evidence as to the following:

   a)the 20 Mu of land bought by the relocated farmers.[22]  The Tribunal put some of these inconsistences to the applicant but was not satisfied with the responses given;[23] 

   b)the claims about why tuition for the applicant’s study ran out.[24]  These inconsistencies were put to the applicant, however the Tribunal noted that the applicant changed his evidence as he adjusted it to fit the Tribunal’s questioning, which further undermined his credibility;[25] 

   c)the apartment in Tieling City.[26]  The inconsistencies in relation to this were put to the applicant and the Tribunal also noted the applicant’s written submission where the applicant changed his evidence;[27]

   d)financial support of the family.[28]  The Tribunal put these inconsistencies to the applicant but found that the applicant’s response did not explain the inconsistencies.[29]  The Tribunal also noted the applicant’s written submission to the Tribunal, but stated that this did not explain the inconsistencies;[30]

   e)compensation for the acquisition of farmland.[31]  The Tribunal put the inconsistences in relation to this to the applicant and also noted the applicant’s written submission, but did not accept the applicant’s explanation;

   f)the authorities looking for the applicant’s father.[32]  The Tribunal found that the applicant gave inconsistent and developing evidence in relation to this; and

   g)whether the applicant’s grandmother was living at the Tieling apartment.[33]  The inconsistencies in relation to this were put to the applicant and were discussed in the applicant’s written submission however, the Tribunal was not satisfied with the applicant’s explanations.[34]

   [22] CB 143 at [45] to [52]

   [23] CB 143 at [47] and [49]

   [24] CB 144 at [53]

   [25] CB 144 at [53]

   [26] CB 144 at [54] to [57]

   [27] CB 145 at [57]

   [28] CB 145 at [58] to [65]

   [29] CB 145 at [62]

   [30] CB 146 at [63] to [64]

   [31] CB 146 at [66] to [69]

   [32] CB 147 at [70] to [74]

   [33] CB 148 at [77]

   [34] CB 148 at [77]

5. The Tribunal observed that having pointed out to the applicant that his initial story involved no serious or significant harm, he then elaborated to involve harm to other people such as a taxi driver and uncles, and presented as evidence that he too would be harmed because of his father’s actions.[35]  The Tribunal told the applicant that it might not believe his claims, because they appeared to evolve over time.[36]

   [35] CB 149 at [83]

   [36] CB 149 at [83]

6. Despite the Tribunal’s concerns about the applicant’s credibility, the Tribunal was willing to give the applicant the benefit of the doubt about the land appropriation in Xidaquanyan, that some of the farmers in the village petitioned against the resumption of the land and the compensation paid based on independent information,[37] that the applicant’s parents moved to the Tieling apartment in January 2014, that the applicant owes money to his friends and family for his study in Australia, and that he has separated from his wife.[38]

   [37] CB 150 at [87]

   [38] CB 150 at [88]

7. On the basis of its previous credibility findings, the Tribunal rejected all other claims, and did not accept that the applicant would face harm based on the claims it had been willing to accept.[39]

   [39] CB 150 at [90] to [93]

8. The Tribunal rejected:

   a)that the applicant will suffer any harm because he owes friends and relatives money;[40]

   b)that the applicant will suffer any harm whether it be losing face, the humiliation of his ethnic group, or otherwise, because his wife left him;[41]

   c)that the applicant’s parents did not get any compensation for their land in Xidaquanyan and that the applicant’s parents petitioned any level of government;[42]

   d)that anyone is looking for the applicant’s father;[43]

   e)that the applicant will pursue the compensation issue should he return to China, or even that there is a compensation issue to pursue;[44]

   f)the claims related to corrupt practices in Dingjiafan and Xidaquanyan;[45]

   g)that the applicant’s father participated in a 2016 election for the leader of the village and that it was fixed because someone else got on with an influential person in the Faku government, and that the applicant’s father went to report it;[46]

   h)that the applicant will be persecuted because he, the applicant’s father or anyone else reported that the government or any government officers are corrupt, including corruption related to cut trees or a damaged road;[47]

   i)that the applicant’s parents or relatives bought, rented, subcontracted or farmed 20 Mu of land in a neighbouring village and the claims that flowed from this;[48] or

   j)that anyone is looking for the applicant’s father or anyone else in the family.[49]

   [40] CB 150 at [91]

   [41] CB 150 at [92]

   [42] CB 151 at [94]

   [43] CB 151 at [94]

   [44] CB 151 at [94]

   [45] CB 151 at [95]

   [46] CB 151 at [95]

   [47] CB 151 at [95]

   [48] CB 151 at [96]

   [49] CB 151 at [97]

9. The Tribunal considered the photographs and videos provided by the applicant at the Tribunal hearing, but found that the applicant’s credibility was so weakened that it was not satisfied with the corroborating evidence in the photographs and videos as it had no way of knowing when or where the photographs were taken and the Tribunal only has the applicant’s assertion that he is related to or knows he people in the video.[50]

   [50] CB 151 at [98]

10. As such, the Tribunal found that the applicant did not face a real chance of persecution or any harm should he be returned to China.[51]  The Tribunal was also not satisfied in relation to complementary protection.[52]

    [51] CB 152 at [102]

    [52] CB 152 at [103] to [104]

The present proceedings

1. These proceedings began with a show cause application filed on 5 July 2018.  There is one ground in that application:

   The Tribunal failed to give sufficient consideration to the oral evidence the applicant gave during the Tribunal hearing and the written submission after the hearing. During the decision making, The Tribunal rejected the applicant's refugee claims and found his evidence not credible. By reaching this decision the Tribunal failed to consider the applicant's post-hearing written submission explaining the inconsistencies among his claims.

2. The application is supported by an affidavit filed with it, which I received as a submission.  The only evidence I have before me is the court book filed on 13 August 2018. 

3. I invited oral submissions from the applicant this morning. He reiterated his complaint that the Tribunal failed to consider, or failed to consider properly, information he provided orally to the Tribunal and responses he made in writing to the Tribunal’s invitation to comment after the hearing. When I asked him for details, he referred to the video that he provided to the Tribunal. The video is referred to in a submission reproduced at pages 117 and 118 of the court book. In its decision, the Tribunal refers to the video at [32].[53]  It is apparent that the Tribunal viewed the video.  The Tribunal’s conclusions drawn from the evidence as a whole, including the video, is set out at [98][54] of its decision:

   The Tribunal has considered the photographs provided by Mr Liang. It accepts they are of demolished houses, cut trees, and a damaged road. But it has no way of knowing when or where the photographs were taken or even being sure, in some cases, what they are intended to evidence. It has also considered the video and accepts it is a genuine Shenyang news report and such an event may have happened. But, the Tribunal only has Mr Liang’s assertion that he is related to, or even knows, the people in the video or that it relates to a piece of land owned by Qi Liang. In light of its finding above that Mr Liang thoroughly lacks credibility and has misled the Tribunal, it finds his credibility has been so weakened that the well has been poisoned beyond redemption and it cannot be satisfied with the corroborating evidence in the photographs or the video. As such it has given the photographs and video no weight as verification of his claims.

   [53] CB 140

   [54] CB 151

4. In all the circumstances, and on the basis of my own perusal of the Tribunal’s decision, I reject the proposition that there was any failure by the Tribunal to consider, or to consider properly, the applicant’s claims and evidence. 

5. In his submissions in reply, the applicant referred to the land dispute forming a key component of his claims for protection, the circumstances of his uncle and his father, and his own fear of arrest.  Those matters go to the merits of the Tribunal decision, but do not support a claim of jurisdictional error. 

6. The Minister’s submissions otherwise deal with the ground advanced by the applicant.  I agree with those submissions.

The applicant’s ground

1. The applicant’s ground in part appears to contend that the Tribunal failed to consider the applicant’s post-hearing written submission, explaining the inconsistencies among his claims.

2. On 20 April 2018, the Tribunal wrote to the applicant, in accordance with s.424A(1)(a) of the Migration Act 1958 (Cth) giving the applicant clear particulars of any information that the Tribunal considered would be the reason or a part of the reason for affirming the decision, and inviting the applicant to comment on or respond to this information. The applicant sent an email on 14 May 2018, responding to this invitation.

3. A failure to consider a claim or contention may amount to jurisdictional error where that contention, if made good, would justify concluding that the applicant had made out a criterion he was required to satisfy for the grant of the visa.[55]

   [55] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593, 604 to 605 at [45] to [48]

4. In particular, the Court in Applicant WAEE v Minister for Immigration[56] held on pages 604 to 605, at [47]:

   The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected....

   [56] (2003) 236 FCR 593

5. In the present case the Tribunal expressly considered and at times expressly quoted the contents of this written submission.  This can be illustrated at:

   a)[47],[57] where the Tribunal paraphrased the applicant’s statement in his written submissions concerning the 20 Mu land, however the Tribunal found that the submission did not explain the differences in the dates for the acquisition of the land;

   b)[57],[58] where the Tribunal expressly quoted the applicant’s written submissions, noting that the written submissions expressed a change in his evidence concerning the apartment in Tieling city;

   c)[63],[59] where the Tribunal expressly quoted and paraphrased from the applicant’s written submissions but found at [64] that the submission did not explain the inconsistencies in the applicant’s evidence concerning the financial support of the family;

   d)[67],[60] where the Tribunal both paraphrased and quoted from the applicant’s written submission but did not accept the explanation in relation to compensation for the acquisition of farmland; and

   e)[77],[61] where the Tribunal paraphrased the applicant’s written submission but found that the submission did not explain why the applicant did not mention his grandmother when the Tribunal discussed the makeup of his family and why he gave different evidence before the delegate and in his visa application.

   [57] CB 143

   [58] CB 145

   [59] CB 146

   [60] CB 146

   [61] CB 148

6. I am satisfied that the Tribunal considered and made findings in relation to the applicant’s written submission concerning inconsistencies in his evidence and these findings were open to it to make.  To the extent that the applicant may disagree with the Tribunal’s reasons and findings, there is no requirement that the Tribunal engage in “an uncritical acceptance of any and all allegations made by applicants”.[62]

   [62] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451-2 per Beaumont J

7. By the ground of review, the applicant may also be suggesting that the Tribunal failed to give sufficient weight to his oral submissions at the hearing.  The Tribunal expressly summarised the applicant’s submissions at the Tribunal hearing at [17] to [36].  The Tribunal also gave express consideration to the applicant’s oral evidence at the hearing, as well as his Department interview and written submission and made findings on this at [37] to [86].  This aspect of the ground is not particularised and the applicant’s oral submissions did not advance it any further.

Conclusion

1. I conclude that the applicant is 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), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The scale amount at the time the application was filed was $3,667.  The applicant did not wish to be heard on costs. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         18 April 2019