DND19 v Minister for Immigration
[2020] FCCA 576
•13 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DND19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 576 |
| 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: Migration Act 1958 (Cth), s.36 |
| Cases cited: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 NAHI v Minister for Immigration [2004] FCAFC 10 SCAA v Minister for Immigration [2002] FCA 668 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | DND19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2396 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A. Zinn of Mills Oakley |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is 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 2396 of 2019
| DND19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 August 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 20 February 2020.
Background and applicant’s claims
The applicant is a male citizen of China who arrived in Australia on 29 May 2014 on a student (Subclass 573) visa.
On 30 June 2015, the applicant applied for a protection visa.[1] He set out his claims in a statement dated 7 June 2015[2], namely:
a)the applicant’s family were involved in a dispute with a Chinese government body over their property and family restaurant. They received a letter from the local county informing them that they must vacate the property by 31 March 2012 and would receive compensation for its demolition. They protested repeatedly to the county to no avail, including by sending letters, hiring a lawyer and attending the county office in person;
b)on 17 March 2012, the applicant and his father again attended the county office and his father began to argue with officials. The police were called. The applicant was detained for three days and his father was detained for 15 days for “intervention with public function”. The applicant was beaten in detention (the detention claim);
c)the restaurant was forced to close and after it was demolished the family received “poor compensation” of RMB 124,200 from the Chinese government. The applicant’s father passed away soon after because he was “so depressed and angry”; and
d)the applicant’s mother feared that the applicant would continue to be persecuted and sent him to Australia on a student visa. The applicant did not know he could apply for a protection visa at the time. His mother continued to protest by visiting “higher level government”.
[1] Court Book (CB) 1-32
[2] CB 35-36
On 6 September 2016, the applicant attended an interview with the delegate.[3] At the interview, the applicant elaborated on his previous claims and raised a further claim[4] that gangs pursued his family after he and his father were released from detention (the gang claim).
[3] CB 72
[4] see CB 112
On 7 September 2016, the delegate refused to grant the applicant a protection visa on the basis of adverse credibility findings.[5] The delegate did not accept that the applicant’s property had been compulsorily acquired for below market-value or that he would be of any interest to the Chinese authorities.
[5] CB 72-81
On 27 September 2016, the applicant lodged a review application with the Tribunal but did not provide a copy of the delegate’s decision.[6]
[6] CB 82-83
On 20 August 2019, the applicant attended a Tribunal hearing and was assisted by a Mandarin interpreter.[7] The applicant submitted no further documentary evidence at the hearing, apart from his passport.[8]
[7] CB 100-101
[8] CB 102
On 29 August 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.[9]
[9] CB 109-121
The Tribunal
The Tribunal outlined the applicant’s claims and evidence and the criteria he needed to satisfy for a protection visa to be granted.[10]
[10] CB 110-112 [1]-[13]
The Tribunal also summarised what occurred at the hearing on 20 August 2019[11], which included the following:[12]
a)the Tribunal asked whether there were any documents to evidence the existence of the restaurant, and the applicant explained they were locked in a safe in the restaurant when it was demolished. The Tribunal noted its concern that he had no documentation of the restaurant given it had purportedly operated for so long and his visa application had been made over four years ago, giving him ample time to provide it;[13]
b)the Tribunal put to the applicant that his family had been able to continue living at the same address in China without any disruption from the authorities, to which the applicant agreed but said this was because they had not complained;[14]
c)the Tribunal put to the applicant that his delay in applying for a Protection visa after arriving in Australia suggested he did not fear returning to China, to which he said he only found out how to apply for a protection visa later;[15]
d)the Tribunal put to the applicant three further concerns it had with his case. First, it noted he had not provided any documentary evidence in support of his claims. Secondly, it noted his ability to depart China without issue suggested he was not of adverse interest to anyone. Thirdly, it noted he did not appear to have any reasonable basis to pursue complaints to the Chinese government on any return and it would be reasonable for him not to do so to avoid harm. The Tribunal invited the applicant to comment on these concerns. In response, the applicant said he was permitted to depart China as long as he did not cause trouble, and that he came to Australia to avoid causing further trouble, but otherwise made no further comment;[16] and
e)the Tribunal asked the applicant if he wanted time to provide more evidence in light of what was discussed at the Tribunal hearing, but the applicant said he was not sure he could find any evidence and therefore did not request any further time.[17]
[11] CB 112‑114 [14]‑[29]
[12] A complete summary of the Tribunal hearing is found at CB 112-114 [14]-[29]
[13] CB 112-113 [18]-[19]
[14] CB 113 [23]
[15] CB 114 [26]
[16] CB 114 [28]
[17] CB 114, [29]
The Tribunal’s decision
The Tribunal considered independent country information on land expropriation and compensation in China which indicated cases of land expropriation were steadily rising.[18] It also accepted that the applicant was a national of China.[19]
[18] CB 114-115, [31]-[33]
[19] CB 115 [34]
The Tribunal had doubts over the claim that the applicant’s property was demolished. It found it difficult to accept that all relevant documentation was kept on the premises (which was then destroyed) if they had been protesting the demolition and compensation offer. It also noted there was no actual evidence of the demolition, the compensation offer or the detention claim. While it referred to independent country information that indicated citizens were forcibly removed from businesses in China, it only found it possible, but not certain, that the demolition occurred.[20]
[20] CB 116 [39]-[41]
The Tribunal accepted that the applicant and his father attempted to visit the county office to complain to no avail and that the applicant and his mother subsequently complained as well. It also accepted that the family was offered and accepted compensation in the amount of RMB 124,200.[21]
[21] CB 116-117 [42]-[44]
The Tribunal doubted the applicant’s father continued to complain after accepting the compensation offer and was not satisfied that his death was attributable to his detention or any attempt to protest. It did not accept that the applicant continued to complain after the compensation offer was accepted or that he was beaten, and also did not accept that his mother tried to complain after he left China. It reiterated that no documentary evidence was provided to support any of these claims.[22]
[22] CB 117 [44]
The Tribunal accepted it was possible that the applicant was detained and may have been subjected to mistreatment, but did not accept he was subject to any ongoing adverse interest as a result of that detention.[23]
[23] CB 117 [45]
The Tribunal referred to the gang claim and the fact that it was not raised in his written statement or in any evidence. It rejected the claim on that basis and did not accept that the family continued to appeal after accepting the compensation offer.[24]
[24] CB 117 [46]
On the basis of these findings, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm upon return to China in the reasonably foreseeable future for any reason. It was also not satisfied that there was a real chance that the applicant would face serious harm on return to China for three reasons: [25]
a)despite having possibly been detained previously, the applicant was released from detention, had no reporting conditions put on him, and was able to depart China in 2014 without issue, which indicated he was not of ongoing adverse interest to the authorities;
b)the applicant’s family had lived at the same address continuously without issue since the applicant’s departure in 2015, suggesting no ongoing interest in them; and
c)the Tribunal did not accept that the applicant would pursue any complaints or protests against the demolition or compensation issues, taking into account the passage of time, that the compensation was accepted and used, and the absence of documentary evidence. It had also rejected the applicant’s claims that further attempts to complain were made and he was beaten up. The Tribunal noted his limited response when it was put to him that he would not make further complaints.
[25] CB 118 [50]-[52]
The Tribunal was therefore not satisfied that the applicant was a person who was owed protection obligations under s.36(2)(a). For the same reasons, it was not satisfied that the applicant was owed protection obligations under s.36(2)(aa). Accordingly, it affirmed the delegate’s decision.[26]
[26] CB 117-118 [47]-[56]
These proceedings began with a show cause application filed on 16 September 2019. There are four unparticularised grounds in that application:
AAT failed to consider my fear and risk of harm upon return to China.
AAT failed to consider the evidence before them.
AAT failed to exercise a reasonable apprehension or actual bias.
AAT failed to consider my real situation.
The application was supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book lodged on 12 November 2019.
I invited oral submissions from the applicant this afternoon. He stated that he was pressed at the Tribunal hearing for dates of events which happened a long time ago. He said that he gave approximate dates, but the Tribunal then pointed to inconsistencies between dates offered by the applicant. Secondly, he said that the Tribunal required evidence in support of his claims, but he was unable to provide supportive evidence because he had moved house.
The Minister responded that the applicant’s submissions mischaracterised the Tribunal’s decision. I agree. It is apparent from the Tribunal’s decision, in particular from [41]-[43], that the Tribunal was, in significant aspects, prepared to give the applicant the benefit of the doubt, notwithstanding the absence of supportive evidence, and notwithstanding any inconsistencies as to the detail of the applicant’s claims.
It is true that at [39], the Tribunal referred to a lack of documentation in support of the applicant’s claims. The same point was made by the Tribunal at [44] of its reasons. However, in general terms, the Tribunal was willing to accept at least some of the bare facts of the applicant’s claims in terms of past events but was unwilling to accept that the applicant had a well-founded fear of future harm in China. This was primarily on the basis that the Tribunal did not accept that the applicant would pursue a claim of compensation on his return, having already accepted the compensation offered by the Chinese authorities.
In his submissions in reply, the applicant reiterated his concern that he was not believed by the Tribunal member. Again, that is, in my view, a mischaracterisation of the Tribunal’s decision. It may well have been that at the Tribunal hearing, the applicant was pressed for details and supportive evidence. However, as I pointed out to the applicant, in its reasons for decision, the Tribunal took a somewhat generous attitude in giving the applicant the benefit of the doubt. I see no arguable case of jurisdictional error in this regard.
The Minister’s submissions deal adequately with the general grounds of review. I agree with those submissions.
It is appropriate to deal with the grounds collectively. First, none of the grounds could succeed in the absence of particulars to give them meaning. Such a failure is a sufficient basis for the grounds to be dismissed.[27] The application for judicial review cannot succeed on this basis alone.
[27] WZAVW v Minister for Immigration [2016] FCA 760 at [35]
Secondly, there is nothing to suggest that the Tribunal failed to consider any evidence or claims that the applicant provided, or that it misunderstood or misinterpreted his “real situation” or fear of harm. Relevantly, the Tribunal repeatedly made note of the fact that the applicant had provided no documentary evidence in support of his claims[28] despite having ample opportunity and time to do so. The Tribunal also offered further time for the applicant to provide evidence, to which he admitted he was not sure he could find any.[29] The contention that the Tribunal failed to consider the evidence before it is baseless.
[28] CB 112 [18], 116 [39], 117 [44], 118 [52]
[29] CB 114 [29]
Whilst the Tribunal nonetheless accepted some of the applicant’s claims[30] it cited and relied on independent country information about land expropriation in China.[31] It concluded there was no basis upon which the applicant might suffer harm upon return to China for reasons that were open to it on the limited material before it. The allegations that the Tribunal failed to consider the applicant’s fear and risk of harm, evidence and “real situation”, lack any proper purpose foundation and cannot succeed in the circumstances. In any event, the assessment, weight and choice of country information is a matter for the Tribunal, not the Court.[32]
[30] CB 116-117 [42]-[45]
[31] See CB 114-115 [31]-[33]
[32] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
Thirdly, in respect of the applicant’s bare allegation of bias, this is a serious allegation that must be firmly and distinctly made and clearly proven.[33] No particulars have been provided and no inference of bias should be drawn from the mere fact of adverse findings in the Tribunal’s reasons.[34] This allegation is baseless and cannot succeed.
[33] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [531]
[34] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
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) (Federal Circuit Court Rules), that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant stated that there was nothing he could say in relation to costs.
I will order that, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with the 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 thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 March 2020
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