Dze19 v Minister of Immigration

[2020] FCCA 3151

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZE19 & ANOR v MINISTER OF IMMIGRATION & ANOR  [2020] FCCA 3151

Catchwords:
MIGRATION – Application for judicial review of decision made by the Administrative Appeals Tribunal – whether decision of tribunal was illogical, irrational or legally unreasonable – where applicant given opportunity of addressing her clams and concerns raised by tribunal – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36

First Applicant: DZE19

Second Applicant: DZF19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2642 of 2019

Judgment of: Judge Obradovic

Hearing date: 10 November 2020

Date of Last Submission: 10 November 2020

Delivered at: Parramatta

Delivered on: 10 November 2020

REPRESENTATION

Appearing for the Applicants: The First Applicant in person and appearing as litigation guardian for the Second Applicant

Appearing for the First Respondent: Mr O’Sullivan

Solicitors for the First
Respondent: Australian Government Solicitor

ORDERS

1. The Application filed on 14 October 2019 is dismissed.

2. The First Applicant pay the First Respondent’s costs fixed in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2642 of 2019

DZE19

First Applicant

DZF19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. Before me is an application for a judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) dated 1 October 2019.  The first applicant is the primary applicant and the second applicant is the daughter of the first applicant (“applicant”). 

2. In her application which was filed on 14 October 2019 the applicant raises four grounds for judicial review.  The applicant says, in respect of the first ground, that the tribunal did not believe that her family owed money to loan sharks with high interest as she had not brought the matter up initially when the application for visa was made to the Department. The applicant says that this was not the right decision to make because, in her view, she can bring matters before the tribunal at any time before it makes a final decision and that it was wrong of them to simply say that it was not true because she said the matter too late.

3. The second ground of the application is that the applicant alleges that the tribunal tried to set her up by asking her since when her father had been living in the old house, as the old house had been demolished.  The applicant said that her answer to this was that since she was very little. She says that the tribunal did not ask her whether her father had moved out, but only assumed that she did not tell the truth, as it was impossible to live in that house since the house had been demolished. 

4. The third ground of review is that the applicant alleges that the tribunal said that the applicant took too long to apply for a protection visa and that she could have found a Chinese-speaking agent to help her apply for a protection visa much earlier.  She says that the tribunal did not consider that she was under financial burden to find an agent and that she needed to feed her child. The applicant alleges that the tribunal simply refused on the basis of some presumptions and that those presumptions were unfair, that is, it refused the application on unfair presumptions. 

5. The fourth ground of review alleges that the tribunal said that the applicant could move to her husband’s parents’ house so that she would be safe from harm.  The applicant says that the tribunal failed to consider that the loan sharks had gang power and that they could harm her easily as long as she was living in China, not to mention the fact that her husband and the applicant were from the same city. 

6. Those are the four grounds of review in the application which has been filed to this Court.  The applicant has not filed any submissions in support of the grounds which she alleges, however, she was given the opportunity today of making oral submissions to the Court. The applicant took that opportunity of addressing the Court in respect of the matters which she was concerned about.  The Court explained to the applicant that it did not have the power to review the merits of the decision, but that it was only concerned with the legality of the decision insofar as whether or not jurisdictional error had been established.

7. During her oral submissions to the Court today the applicant raised matters which do not appear to have been raised before the tribunal or the delegate or in her application, those matters being about the control of the central government including the assertion that the central government did not have power in provincial China, particularly in the rural area where she lived or had been living prior to moving to Australia.   The applicant also submitted that the tribunal failed to consider the reality of the situation in China, that is, the cultural aspects of life in China, particularly rural China.

8. The Court has had the benefit of written submissions filed on behalf of the first respondent, as well as oral submissions from the first respondent and the Court is not satisfied, for reasons which will be shortly explained, that the tribunal has acted outside of jurisdiction in its determination of 1 October 2019.

9. It should be said at the outset that a decision affected by jurisdictional error is, as a matter law, no decision at all, and jurisdictional error, in the requisite sense of these proceedings, can be understood as an error which has led the tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.

10. In order to succeed in her application the applicant must establish that the tribunal’s decision is affected by jurisdictional error.  The Court is mindful that the applicant is a self-represented litigant, that she does not have any legal training and that she is being assisted today by an interpreter.  Notwithstanding those difficulties that the applicant faces, the Court has attempted, in its discussions with the applicant, to get to the bottom of her complaint as to what it is that the tribunal is said to have done which is wrong, in the sense of jurisdictional error. 

11. The applicant has, essentially, submitted to this Court that she disagrees with the tribunal’s decision because it did not believe what she said.  She said that the accounts that she gave were the real truths and that she would like another opportunity for another review so that she can provide information and explain herself.  The applicant was asked by the Court whether she had the opportunity of putting all of her claims before the tribunal.  She agreed that she had.  She was asked whether she had the opportunity of answering any questions that the tribunal posed and she said that she had.

12. The applicant was also asked whether she had the opportunity of saying everything that she wanted to say to the tribunal and she said that she had that opportunity.  She implored this Court to uphold justice in a fair way after it was explained to her that this Court did not have the power to review the decision of the tribunal on the basis of whether or not that decision was meritorious. 

13. The applicant arrived in Australia on 11 May 2008.  At the time she was the holder of a subclass 571 student visa.  That visa was valid until 28 June 2011. 

14. Between 28 June 2011 and 22 September 2015 the applicant remained in Australia as an unlawful non-citizen.  In September 2015 she applied for a protection visa and was granted a bridging visa. Notwithstanding the expiration of her student visa on 28 June 2011, the applicant did not apply for a protection visa until September 2015.

15. After almost a year of her application for a protection visa, the applicant gave birth to the second applicant, who was born on 13 September 2016.  The second applicant was born in Australia.  It appears that the father of the second applicant was, at the time of the tribunal’s decision, the de facto partner of the applicant, and that at the time of the tribunal decision the applicant was pregnant with their second child.

16. It appears from the matters which the applicant told the tribunal that her de facto partner had also been an unsuccessful applicant in a visa application, a matter which is relevant for background purposes only. On 2 November 2016 the second applicant was granted a bridging visa. 

17. The delegate refused to grant the applicants’ visas on 4 November 2016.  On 16 November 2016 the applicants applied to the tribunal for a review of the delegate’s decision. The first applicant appeared before the tribunal on 26 September 2019 to give evidence and present her arguments.  Like today’s hearing, the hearing before the tribunal was conducted with the assistance of an interpreter.  The tribunal’s decision, which was delivered on 1 October 2019, is a lengthy and detailed decision considering the applicant’s claims for a protection visa.        

18. At paragraph 13 of the tribunal’s decision the tribunal set out a summary of the applicant’s claim in her application for a protection visa.  The tribunal then, at paragraph 16, notes that the applicant attended an interview with the delegate on 2 November 2016 where she provided additional information and made new claims, as set out in that paragraph of the decision.  At paragraphs 21 through to 48 of the tribunal’s decision the tribunal painstakingly went through the applicant’s claims, that is the information which she provided not only at the time of her application for a protection visa, but also during her interview with the Department on 2 November and to the tribunal on 26 September 2019.  The tribunal noted the various inconsistencies in the applicant’s evidence, that is, matters which were not capable of being reconciled. 

19. Having regard to the applicant’s evidence and the various claims which she made, and the opportunity which the applicant had been given to address the concerns which the tribunal raised (the inconsistencies, the potentially differing versions of events, the different claims which the applicant made initially when she applied for the visa and, thereafter, at the interview with the Department, with what she said to the tribunal), the tribunal was not satisfied that the applicant had made out the claims.

20. At paragraph 52, the tribunal said the following:

    Having considered all of the first named applicant’s claims and all the evidence, the tribunal finds that the first applicant is not a witness of truth.  The tribunal finds that she fabricated her material claims for the purposes of obtaining a protection visa. 

21. The tribunal then summarised again the reasons for why it made certain findings and why it did not accept the claims made by the applicant.  Those findings were open to the tribunal on the material that it had before it having regard to all of the matters and all of the claims made by the applicant. 

22. The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high, as has been observed in the number of decisions.  A decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker.  A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn.  That has simply not occurred here, the findings of the tribunal were open to it on the evidence before it.

23. Unreasonableness of a decision will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have reached that same conclusion or that decision.  Once again, that has not happened here.  When one looks at the tribunal’s decision it is a decision which is reasoned and which takes into consideration the difficulties faced by the applicant in being a person from a non-English-speaking background with no legal training and little, if anything, by way of support from family and friends. 

24. The tribunal also, at paragraphs 44 to 46, considered that even if the claims were accepted, or some of the applicant’s claims were accepted, it would be highly unlikely that the Chinese authorities would have any interest in the applicant if she returned to China now or in the foreseeable future. The tribunal noted that the applicant had not claimed that her parents had been located by the loan sharks since 2016, or that they have had any contact with the loan sharks since that time, and that it was highly unlikely, in the circumstances described by the applicant in her claim, that the loan sharks would be aware of the applicant’s return to China, let alone that they would track her down and beat her to death or kidnap the second applicant and sell her, as she claimed to the tribunal. 

25. The tribunal also took into account the applicant’s evidence about her partner (the father of her child) and the reasons which the applicant provided as to why it would not be practical for her to move into her partner’s home after their marriage. The tribunal came to the conclusion that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in section 5H of the Migration Act 1958 (Cth) (“the Act”) and that she does not satisfy the criterion in section 36(2)(a) of the Act. The tribunal also found that the applicant did not meet the complementary protection criteria.

26. Once again, this was done after careful consideration of the applicant’s claims individually and cumulatively and all of the evidence which the applicant had presented.

27. The grounds argued by the applicant, which I have referred to earlier, do not raise any jurisdictional error, but are, rather, an attack in relation to the merits of the tribunal’s decision. 

28. The applicant says that the tribunal did not believe her about money being owed to loan sharks because she did not bring it up in her initial application to the Department. It is simply not correct that the tribunal said, as the applicant alleges, that her claim was untrue because it was brought late.  The tribunal invited the applicant to address it as to why the matter was not mentioned in the initial visa application and, having considered all of the applicant’s evidence, found it unlikely that she would not have mentioned it when she made that visa application.

29. In relation to the second ground, it is simply not correct, as the applicant alleges, that the tribunal did not ask her whether her father had moved out, but only assumed that she did not tell the truth that it was impossible to live in that house since she was little after the house had been demolished.  This is not what the tribunal’s reasons disclose. The tribunal considered the applicant’s evidence in relation to where her parents had lived at various times, told at different times by the applicant.  Indeed, what the tribunal did, as is evident from paragraph 25 of its reasons, was put to the applicant the apparent contradictions in her evidence, gave the applicant the opportunity to explain those discrepancies, and reminded the applicant of her earlier evidence.

30. In relation to ground 3 the applicant’s claim that the tribunal did not consider that the applicant was under financial burden and, therefore did not make an application for a visa until the time that she did, and that she needed to feed her child, is inconsistent with the chronology of events and when the applicant made her application.  The tribunal was concerned, as I had already indicated, about the lack of support that the applicant had after moving to Australia on a student visa in 2008, and recognised the difficulties that she faced.

31. The tribunal, at paragraph 41, mentioned that there were other ways that the applicant could have sought some support or advice. On one version of the events which were provided by the applicant, to the delegate on 2 November, it was in December 2012 that her parents first borrowed money from the loan sharks, and it was in June 2013 that the loan sharks had, apparently, told her parents that the applicant would have to pay back the debt if the parents could not.  At that time the applicant was in Australia as an unlawful citizen, with her student visa having expired almost two years prior to that and it was not until a further two years that she applied for a protection visa.  The need to feed the applicant’s child, that is, the second applicant, did not arise until a year after the visa application was made because the child was not born until September 2016.  In any event, ground 3 does not in any way amount to an argument as to jurisdictional error. 

32. In relation to the fourth ground, that is, that the tribunal did not consider that the loan sharks had gang power and that they could harm her easily as long as she was in the country, the tribunal did consider this, but it simply did not accept that this would be a likelihood that would face the applicant upon her return to China.  This was discussed by the tribunal at paragraphs 45 and 46 of its reasons. 

33. For all of those reasons I dismiss the application for judicial review filed on 14 October 2019.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 20 November 2020