DSY17 v Minister for Immigration

[2019] FCCA 690

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 690

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – fear of money lenders and/or gangsters in China – whether the Tribunal failed to disclose country information – whether the Tribunal failed to consider the Applicant’s claim and whether it relied on irrelevant information – whether the Tribunal made a finding without supporting evidence – whether the Tribunal relied on an invalid certificate – whether because the Tribunal relied on an invalid certificate this was procedurally unfair to the Applicant – Tribunal considered Applicant’s claim – Tribunal did not consider irrelevant information – Tribunal made findings on evidence – failure to notify the Applicant was not material – no procedural unfairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 438.

Cases cited:

Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3

Applicant: DSY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1814 of 2017

Judgment of: Judge McNab

Hearing date: 29 October 2018

Date of Last Submission: 12 November 2018

Delivered at: Melbourne

Delivered on: 21 March 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Mr N Wood

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 21 August 2017 be dismissed.

2. The Applicant pay the Respondent’s cost fixed in the sum of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1814 of 2017

DSY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 21 August 2017, the Applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (‘the Act’) of the Administrative Appeals Tribunal’s (‘Tribunal’) decision made 10 August 2017. The decision affirmed a decision of a delegate of the First Respondent (‘the Delegate’) to refuse the Applicant a grant of a Protection (Class XA) visa (‘Visa’).

Background

Procedural history

1. The Applicant is a citizen of China and is 34 years old.

2. On 24 December 2009, the Applicant applied for a Protection visa.

3. On 24 March 2010, this application was refused and on 1 July 2010 the Refugee Review Tribunal affirmed the decision to refuse the visa. The Applicant remained in Australia.

4. On 23 September 2013, the Applicant made a second application for a protection Visa.

5. The Delegate refused to grant the Visa on 13 February 2015.

6. The Applicant appeared before the Tribunal on 14 July 2016 to present evidence and make arguments with the assistance of a Mandarin interpreter.

7. On 9 August 2017 the Tribunal affirmed the decision of the Delegate to refuse the grant of the Visa.

8. On 21 August 2019 the Applicant appealed the Tribunal’s decision to this Court.

Claims of the Applicant

1. The Applicant claims to fear returning to China on the basis that he would be harmed by gangsters and/or money lenders and police and/or other government officials.

Tribunal Decision

1. The Tribunal was not satisfied that the Applicant would be ‘arrested or charged, detained and persecuted by police and officials for any reason or tortured or harmed by gangsters and money lenders in China’.

2. The Tribunal found that the Applicant was not a credible witness. The Tribunal questioned the Applicant and sought further evidence of the harm that the Applicant faced on return to China. The Applicant was vague and provided limited responses to these questions, and stated that he does ‘not know what the reasons are that he is making this application now; that it has been a long time since he departed, and [he] does not remember many things’. When asked whether the Applicant was seeking protection from harm in China, the Applicant answered ‘No’.

3. The Tribunal doubted the Applicant was harmed by gangsters and moneylenders in China. The Applicant recited information that was imprecise and conflicted with his previous testimony to the Delegate. The Tribunal made note of the following inconsistencies and inaccuracies:

   a)the Applicant’s claimed period of incarceration changed dramatically during his applications for a Visa:

   i)during the 2010 application, the Applicant claimed to be incarcerated for around six months;

   ii)during this application the Applicant told the Delegate when interviewed that the period of incarceration was one week; and

   iii)on appeal to the Tribunal, the Applicant informed the Tribunal that the true length of his incarceration was several weeks.

   b)the Applicant told the Tribunal that he did not remember when he was incarcerated. The Tribunal put it to the Applicant that he was incarcerated around Chinese New Year 2009, which the Applicant accepted;

   c)the Applicant did not remember that he had previously claimed to have sent a letter to the Consumer Affairs Office regarding his treatment by security guards in China; and

   d)the Applicant could remember distributing anti-government pamphlets but could not remember the content of these pamphlets.

   The Tribunal found that the Applicant’s lack of certainty (the Applicant recalling different lengths of incarceration) and the lack of detail in his answers (not knowing when his incarceration began or the content of the pamphlets he distributed) diminished his credibility. The Applicant’s lack of credibility led the Tribunal to doubt the truthfulness of his claims.

4. The Tribunal reminded the Applicant that he had made claims about fearing harm from moneylenders. The Applicant then told the Tribunal that he ‘had no problem with money lenders now’.

5. The Applicant made a further claim that if returned to China he would be arrested for using a false passport and departing China illegally. The Applicant claims to have purchased a passport on the street in Guangzhou because he has been “blacklisted” by the Chinese government due to the events recounted above. The Tribunal relied on independent advice from the Department of Foreign Affairs and Trade (“DFAT”) from December 2011 and a briefing note from the Economist Intelligence Unit in 2007. These sources indicate that the use of false passports in China is not common. The Tribunal also put to the Applicant that he had applied for and collected a new passport in 2013 from Chinese authorities – an act that the Tribunal did not believe was consistent with a person in fear of Chinese authorities. On the basis of the Applicant’s credibility, lack of other corroborating evidence regarding the use of a fake passport, and the independent country information, the Tribunal was not satisfied of the truthfulness of the Applicant’s claims.

Grounds of review

1. By application made 21 August 2017, the Applicant relies on the following grounds of review (extracted from the initiating application):

   a) The Tribunal failed to disclose country information upon which it relied.

   b) The Tribunal failed to consider the Applicant’s claim but rather took into account of irrelevant issues. The Applicant failed in recollection of his past experiences that does not mean that the Applicant is untruthful in his application.

   c) The Tribunal made a finding without supporting evidence. The Tribunal was unable to provide the particulars when making its findings.

   These are grounds one, two and three.

Certificates

1. As a model litigant, the Minister noted in their first submission (‘primary submission’) that the Applicant may have another ground of review relating to a certificate issued by a Delegate of the Minister under s 438 of the Act. The issue of certificates was further canvassed in the supplementary submissions (‘supplementary submissions’) by the Minister. The Applicant did not make written submissions.

2. The primary submission and supplementary submissions make note of two certificates.

3. The first certificate relates to the first application and was made on 19 April 2010. The primary submissions notes that this certificate was not relied upon by the Tribunal in the second hearing. The first certificate received no further consideration in the Minister’s supplementary submissions and appears not to have been taken up by the Applicant.

4. The second certificate relates to the second application and covers different information than the first certificate. The second certificate was not disclosed to the Applicant. The Minister submits that this may:

   [5.1] [give] rise to procedural unfairness, because the applicant was denied the opportunity to contend to the Tribunal that: (i) the “certificate” was invalidly issued; and/or (ii) the Tribunal should exercise its power under section 438(3)(b) to disclose information in the “Source Information summary” covered by the “certificate” to the applicant; and

   [5.2] if so, whether the Court should exercise its discretion to refuse to grant relief.

   This is ground four.

Submissions

1. The Minister’s submissions respond that:

   a)ground one is ‘factually baseless, and legally misconceived’;

   b)ground two lacks merit as it is not the Tribunal’s role to make the Applicant’s case for him. The Minister relies on Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45] for this proposition.[1]

   c)ground three fails to provide sufficient particulars to identify what finding was made without evidence.

   [1] Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45] (Spender, Moore and Foster JJ).

2. The Tribunal stated that the information covered by the certificate was ‘already before the Tribunal’. The supplementary submissions note that this characterisation is incorrect. The information covered by the certificate included one new item of information that stated:

   His ‘pass to and from HongKong and Macao’ the number is W2121937.

   Contextually, this information suggests that a “pass” from Hong Kong to Macao is different than a “passport”.

3. The Minister submits, notwithstanding the additional information, at [12]-[14] that:

   While acknowledging that this particular information was not otherwise before the Tribunal, the Minister notes that the applicant raised no claim about a “pass to and from Hong Kong and Macao”. He did not claim to have one (or to have one of a particular number), or to not have one.

   … the Tribunal expressly stated that it did not place any weight upon the information covered by the second “certificate”. In particular, there is no basis to conclude that the Tribunal considered that any of the information in it (including the information about the “pass to and from Hong Kong and Macao”) would be “the reason, or a part of the reason, for affirming the decision under review”, so as to engage the obligation in section 424A(1).

   Accordingly, the Court should conclude that the failure of the Tribunal to disclose the existence of the second “certificate” to the applicant did not cause any practical injustice. The decision-making process thereby did not involve a denial of procedural fairness, or alternatively the Court should exercise its discretion to refuse to grant relief.

Consideration

Ground one – the Tribunal failed to disclose country information upon which it relied

1. This ground has no substance.

2. The Tribunal’s decision record indicates that the Tribunal did put to the Applicant the country information it relied on. Reference may be made to [42] of the Tribunal’s decision record. The Court also refers to [38]–[39] of the decision record which specifically refers to the country information relied upon by the Tribunal and put to the Applicant.

Ground two – failure to consider the Applicant’s claim and taking into account irrelevant issues

1. Having regard to the Tribunal's findings that the Applicant failed to remember key details of claimed events and his reluctance to discuss his claims, it was open for the Tribunal to doubt that those events occurred. The Tribunal explained its reasons for its credibility findings at [23]-[34] of the decision record and set out detailed reasons for having serious concerns about the Applicant's credibility. It is not apparent that the Tribunal has taken in account irrelevant issues in making its decision.

2. There is no jurisdictional error apparent in the way that the Tribunal dealt with the credibility issues.

Ground three – the Tribunal made a finding without supporting evidence

1. This ground has no substance.

2. The Applicant failed to identify which finding was made without supporting evidence. It is not possible to know which particular finding is sought to be impugned.

3. It is apparent from the terms of the Tribunal's decision that each of the findings that were made referred to the claims made by the Applicant and the evidence he raised in relation to those claims.

Ground four – certificates

1. It is clear that the Tribunal only purported to act on the second certificate and did not act on the first certificate. The Minister acknowledges that the first certificate was invalid, however, as the Tribunal did not act upon that certificate no issues arise.

2. At [45] of the Tribunal’s decision record the Tribunal referred to material under the second certificate. The Tribunal considered that the material covered by the second certificate (and the notification) raises no new issues and is only of past contextual relevance for the purposes of the review. The Tribunal noted that it gave no weight to the information covered by the certificate. The Tribunal’s provides an accurate summary of the information at [45]:

   …basic background information and bio-data about the applicant that is already before the Tribunal, and information that is general in nature discussing the applicant’s status as an asylum seeker who has engaged assistance in making this application”.

3. The Court accepts that the failure on the part of the Tribunal to disclose the certificate to the Applicant did not cause any practical unfairness to the Applicant. The failure to notify the Applicant of the contents of the certificate is not material and does not result in jurisdictional error: see Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [38]

Conclusion

1. For these reasons the application will be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 21 March 2019