DWR16 v Minister for Immigration

[2018] FCCA 871

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 871

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.414, 424AA, 424A, 425, pt.7

Cases cited:

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123

Applicant: DWR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3569 of 2016

Judgment of: Judge Smith

Hearing date: 7 March 2018

Date of Last Submission: 7 March 2018

Delivered at: Sydney

Delivered on: 7 March 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3569 of 2016

DWR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 18 November 2016.  The Tribunal affirmed a decision of a delegate of the Minister made on 24 February 2015 to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 8 March 2014 and lodged an application for a protection visa on 13 May 2014. The claims made in support of that application are set out at [12] of the Tribunal’s reasons and I set that out below:

   The applicant stated that he left China as he was persecuted by the Chinese government when his farming land was forcibly appropriated. In mid-July 2012 he received a letter from the Office of House Demolishing and Relocation, Wen Village informing him that the local government would take his farm to build “free agriculture market”. He was offered 200,000RMB compensation and told to move before 31 August 2012. The applicant believes the offer of compensation was very low and consulted a lawyer who did not agree to assist him because he was opposing the government. He and his wife visited local authorities in Xiwa Village on 4 August 2012 with a petition letter. They argued with local staff who called the police. The police took them to the local police station where they were detained for 15 days, accusing them of “intervention with public function”. In the detention centre they were beaten and told that if they petitioned again they would break their legs. They had extensive bruising after they were released. The applicant's land was forcibly occupied on 31 August 2008 (sic) by bulldozers. He has since received compensation of 200,000RMB. They continued to try several times to communicate with local authorities for more reasonable compensation but were ignored. On 22 December 2012, the applicant visited Gaocheng City Government who interviewed him. However he had no further response. On 26 January 2013 the police came to his home and arrested him. He was detained for one month and again charged with intervention of public function. He was tortured more seriously and told that if he kept behaving like this he would be tortured to death. After his release he was required to report to the police to have re-education once a week. He decided to escape overseas because it was not possible to be away from the evil hands of police in China. After he departed China the police issued a writ of summons on 22 April 2014 as he had not been reporting as required, and demanded that he report within one month. The applicant did not return to China as he feared he would be harmed by the police again.

3. On 24 February 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal (RRT) for review of that decision.  On 1 July 2015, the Tribunal assumed the functions of the RRT and it continued and finalised the review of the delegate’s decision. 

4. As part of that process the Tribunal invited the applicant to attend a hearing conducted on 16 November 2016 and the applicant attended that hearing with the assistance of an interpreter to and from the Mandarin language.  On 18 November 2016, the Tribunal made a decision affirming the delegate’s decision. 

Tribunal’s decision

1. The reasons for the Tribunal’s decision are summarised accurately at [5] through to [9] of the first respondent’s written submissions and I set those out below:

   5The Tribunal found (CB 79 at [42]) that the applicant’s evidence lacked credibility for the following reasons:

   5.1The applicant did not make any attempt to obtain a visa to Australia for over a year after he claimed he last suffered harm from the police. The applicant claimed that he approached a migration agent in April 2013, but he did not lodge the visa application until February 2014 (CB 79 at [43]).

   5.2The applicant stated that when he departed China he intended to apply for protection in Australia; however, he did not lodge his application until just before his temporary visa ceased (CB 79 at [44]).

   5.3There were a number of inconsistencies between the applicant’s written statement and his oral evidence at hearing, and the Tribunal did not consider that his explanations accounted for the discrepancies (CB 80 at [45]). The inconsistencies included the following:

   (a)    In his written statement, the applicant claimed that he went to petition the authorities with his wife and they were both arrested, beaten and detained for two weeks, whereas at the hearing, he stated twice that he went to the authorities alone (CB 77 at [29]).

   (b)    In his written statement, the applicant said that he was arrested one month after petitioning the authorities the second time, whereas at the hearing, he said he was arrested at the government office (CB 77 at [29]).

   (c)     In his written statement, the applicant stated that he was issued with a writ of summons at his home in China after he arrived in Australia, whereas at the hearing, he said nothing happened after he departed China (CB 77 at [29]).

   (d)    The applicant claimed at the hearing that his arm had been broken during the second detention when he had not previously mentioned the injury and there was no evidence his arm had been injured (CB 78 at [30]).

   6The Tribunal accepted that the applicant’s land was appropriated and he was paid the offered amount of compensation (CB 80 at [48]). However, it considered that the applicant provided “vague and inconsistent evidence” regarding his attempts to petition the authorities (CB 80 at [49]).

   7The Tribunal found that the applicant was not a witness of truth and accordingly did not accept his claims that he had petitioned the government and been detained twice or that he was required to report weekly to police to have ‘education’; that if he returned to China, he would continue to petition the authorities; that he was of adverse interest to the authorities when he left China; or that he had engaged in any conduct in Australia which would cause him to come to the adverse attention of the authorities (CB 80-81 at [50]-[53]).

   8Based on these findings individually and cumulatively, the Tribunal was not satisfied that there was a real chance that the applicant would face serious or significant harm upon return to China as a result of the appropriation of his land, or any protests or petitions relating to the land appropriation or inadequacy of compensation payments, or for any other reason (CB 81 at [54]-[55]).

   9As the applicant did not satisfy s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act), the Tribunal affirmed the decision under review (CB 81 at [56]-[59]).

   (Emphasis in original)

Consideration

1. The grounds in the application for judicial review are as follows:

   AAT IS UNFAIR TO ME, THEY ARE DISCRIMINTIVE TO ME.

   AAT not accept my land was appropriated by the authorities; I do not have a source of income for me and my family. I will face serious harm in life after returning.

   AAT BREACH THE PROCEDURE FAIRNESS

   I have lost my source of income, I could not find a work if return, I am a refugee

   (Without alteration)

2. It appears to me that the second and fourth paragraphs in these grounds are the particulars to the first and third.  In short, the allegation is that the Tribunal’s decision was unfair because the Tribunal did not accept that the applicant was a refugee.  Understood in that way, these grounds are based upon a misunderstanding of the role of this Court.  It may indeed be unfair if the Tribunal has made wrong findings of fact but the only purpose and role of the Court is to determine whether those findings were made within the scope of the power given to the Tribunal by the legislature.

3. In the case of the Tribunal, the power given to it to review the delegate’s decision under s.414 of the Act carries with it the power to make findings of fact so long as they are reasonably based upon the material before it after consideration of all of that material. For that reason, the grounds, framed and understood in that way, are misconceived and are rejected.

4. I have considered the grounds, however, in another way, namely, as a contention of a denial of procedural fairness.  There is no guidance as to how the Tribunal’s review was made in denial of procedural fairness as the applicant did not particularise that in any proper way in the application.

5. No written submissions were filed in support of the grounds and the applicant declined the opportunity at the hearing today to make any oral submissions in support of the grounds. Having had regard to the material before the Court which is contained in the Court book (exhibit A), I am not satisfied that there was any denial of procedural fairness in so far as the obligation to afford such fairness is understood in light of the provisions of pt.7 of the Act.

6. First, it is clear, as I have already noted, that the applicant was invited to and did attend a hearing conducted by the Tribunal in accordance with the obligation under s.425 of the Act.

7. There is no transcript of that hearing before the Court but a summary of what occurred at the hearing is contained in the Tribunal’s reasons at [15] through to [34]. Those paragraphs reveal a number of matters. First, the Tribunal recorded and took into account the evidence given by the applicant at that hearing.

8. Secondly, the Tribunal put to the applicant a number of inconsistencies in written statements that he had provided in the course of his visa application process: see [29].

9. I note that although the Tribunal purported to do this under the provisions of s.424AA it is unlikely, in my view, that there was any obligation to do that given that ordinarily inconsistencies do not amount to information which give rise to an obligation under s.424A(1): see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26, citing, amongst other matters, VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123.

10. Thirdly, [30] through to [33] of the Tribunal’s reasons reveal that the Tribunal discussed with the applicant a number of concerns that it held about the credibility of his claims. 

11. Once again it is not necessarily incumbent upon a decision maker such as the Tribunal to reveal its thought processes in this way to an applicant. Nevertheless, it is pertinent in this case simply because the applicant was clearly put on notice of one of the critical issues that arose on the review by the Tribunal and for that reason greater confidence can be had that the requirements of s.425 were complied with by the Tribunal.

12. For all of those reasons and in the absence of any particulars or other evidence concerning the way in which the Tribunal conducted its review, I am not satisfied that there was any denial of procedural fairness or of any of the procedural requirements of pt.7 of the Act.

Conclusion

1. For those reasons I am not satisfied that there is any jurisdictional error in the Tribunal’s decision and the application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     11 April 2018