ECV16 v Minister for Immigration

[2019] FCCA 3607

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECV16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3607

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal provided the applicant an opportunity to put on evidence and submissions – whether the Tribunal’s findings lacked evident and intelligible justification – whether the Tribunal understood the applicant’s claims and evidence – whether the Tribunal took into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 424AA, 476

Applicant: ECV16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3737 of 2016

Judgment of: Judge Street

Hearing date: 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Sydney

Delivered on: 11 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S Lloyd
HWL Ebsworth

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.

DATE OF ORDER: 11 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3737 of 2016

ECV16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 November 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant was found to be a citizen of China and his claims were assessed against that country. On 24 April 2013, the applicant was issued with a passport. On 3 November 2013, the applicant left China legally. On 4 November 2013, the applicant arrived in Australia as the holder of a Student (Higher Education Sector) (Subclass 573) visa (“the Student visa”). That visa was in effect until 18 November 2015.

3. On 12 June 2014, the applicant lodged an application for a Protection visa. The applicant claimed that he has a wife and child. The applicant claimed that, in June 2012, family planning officials discovered that his wife was five months pregnant with a second child. The applicant claimed that he refused to pay an excessive fine for having a second child. The applicant alleged that he was later threatened.

4. The applicant alleged that, on 2 July 2012, policemen came to his home and dragged him away and detained him at a police station. The applicant also alleged that his wife was taken away to undergo induced labour and that she was beaten on the way to hospital. The applicant alleged that, on 4 July 2012, his baby was stillborn. The applicant claimed that he was released that day and was very angry about what happened.

5. The applicant alleged that he went to the Town Government many times to seek an explanation. The applicant claimed that he decided to petition the City Bureau but did not receive a response to his petition. The applicant claimed that, on 5 October 2012, he left his house planning to go to Beijing to petition and was intercepted by a police officer who took him to the police station. The applicant alleged that he was beaten, his petition letter was taken away, he was forced to sign a guarantee promising to make no more petitions and was warned that he would be jailed if he petitioned again. The applicant claimed that he did not make any further petitions and that the government relaxed its vigilance on him.

6. The applicant claimed that he subsequently obtained a visa to come to Australia and is afraid of returning to China.

7. On 8 April 2015, the Delegate found that the applicant did not meet the criteria for the grant of a Protection visa.

8. On 1 May 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 26 October 2016, the Tribunal invited the applicant to attend a hearing on 23 November 2016. The applicant appeared on that date to give evidence and present arguments.

9. The Tribunal in its reasons identified the background to the applicant’s review application. The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims and evidence.

10. The Tribunal did not accept that the applicant has a well-founded fear of persecution. The Tribunal did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being moved from Australia to China, there is a real risk the applicant would suffer significant harm.

11. The Tribunal referred to the applicant raising new claims at the hearing. The applicant, in that regard, claimed that he had received a telephone call from his family the year prior, telling him that officials wanted to sue him and file a case against him claiming that the applicant blackmailed them. The applicant claimed that, once he goes back to China, he would be sued for blackmail. The Tribunal did not accept the applicant’s explanation as to why he had not advanced that claim earlier.

12. The Tribunal found that there were a number of inconsistencies in the applicant’s evidence and his alleged reasons for his fears in relation to his return to China. The Tribunal found the applicant not to be a credible, truthful or reliable witness in relation to his claims.

13. The Tribunal identified first that, although it was a significant part of the applicant’s claims to be married and have a child, in the applicant’s Student visa application and accompanying documents, he claimed that he was not married. The application also contained other inconsistencies in relation to the applicant’s background.

14. The Tribunal referred to putting to the applicant, pursuant to s 424AA of the Act, information in respect of the applicant’s Student visa and referred to the applicant’s response. The Tribunal found that the applicant did not provide an explanation as to why he could not have referred to his wife and child in the Student visa application form. The Tribunal also identified that its concerns in relation to the applicant’s family status were heightened given the inconsistent evidence about the applicant’s marriage dates and the date of the birth of his wife and child.

15. The Tribunal also identified inconsistencies in relation to further aspects of the applicant’s claims.

16. In particular, the Tribunal identified inconsistent evidence about whether the applicant intended to pay a fine of 40,000 RMB. The Tribunal found that the applicant gave inconsistent evidence about his willingness to pay the amount demanded and that this impacted on the applicant’s credibility.

17. The Tribunal also found that the applicant gave inconsistent evidence about contact with the authorities and the threats made.

18. The Tribunal also found that the applicant gave inconsistent evidence in relation to his encounters with the Town Government in respect of his five visits.

19. The Tribunal also identified concern in respect of the applicant’s delay in applying for the Student visa until October 2013 when he claimed to have suffered harm in July 2012. The Tribunal was further concerned in relation to the applicant’s delay in lodging his application for a Protection visa after arriving in Australia. The Tribunal also found the applicant’s absence of inquiries and doing nothing for seven months after first arriving in Australia to be inconsistent with the new claim advanced by the applicant in respect of his family being bullied and harassed in his absence.

20. The Tribunal was also concerned in relation to the applicant’s credibility in respect of the alleged harassment of his family from the time he left and his failure to mention that in his statement.

21. In these circumstances, the Tribunal found the applicant not to be a credible witness. The Tribunal concluded that the applicant was not a witness of truth and that the applicant had fabricated accounts of events and claimed fears upon which he based his protection claims.

22. The Tribunal did not accept that the applicant was or is married, that he had a child, that his wife was pregnant again in contravention of family planning regulations or that he has ever come to the adverse attention of the family planning authorities or the authorities generally in China. The Tribunal did not accept that the applicant’s wife was forced to be subjected to an abortion, that the applicant was subject to corruption in relation to the family planning fines, that the applicant was arrested or detained or threatened, that the applicant and his wife petitioned or that the applicant and his wife were subject to harm or harassment or threats from the authorities at all.

23. The Tribunal did not accept that the applicant was threatened or was sought to be the subject of harm while he was in China. The Tribunal did not accept that the applicant had been of adverse interest to anyone since the applicant has been in Australia. The Tribunal did not accept that the applicant’s family had been subjected to continual harassment. The Tribunal did not accept that the applicant was facing any harm in China or needed to come to Australia for protection.

24. The Tribunal found that the applicant was not a credible witness concerning his past or future harm allegedly feared. The Tribunal rejected the claims made by the applicant.

25. The Tribunal found that the applicant did not have a well-founded fear of persecution for a 1951 Refugee Convention-related reason. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant would suffer significant harm. The Tribunal found that the applicant did not meet the criteria in sub-ss 36(2)(a) or 36(2)(aa) of the Act.

26. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 28 December 2016.

2. On 11 May 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. The applicant indicated that he did not wish to put submissions in support of the grounds of his application and that he wanted to rely upon his written application. The Court informed the applicant it would not call on the solicitor for the first respondent where the first respondent’s submissions were in writing and had been read to the applicant and if the applicant did put any oral submissions. The applicant confirmed that he did not wish to put any oral submissions.

5. The solicitor for the first respondent identified the need for the correction of the name of the first respondent. The applicant was again invited to put submissions and indicated that he did not wish to do so.

Grounds in the Application

1. The grounds in the application are as follows:

   There exist jurisdictional errors.

   1. The Tribunal concerns about my family status. But the Tribunal does not allow me to provide relevant evidence to prove my real family status. If the Tribunal really wants to find out the truth, I should be given a chance to provide relevant evidence.

   2. The Tribunal makes wrong decisions.

   The Tribunal does not understand why I continued to visit the same Town Government on further occasions, because Town Government had already denied forcing my wife to undergo induced labour. But it is logical to request the same government to give explanation on a few occasions after the accident happened.

   3. The Tribunal does not consider my case in the fair way.

   The Tribunal was concerned about my delay in applying for a student visa. I asked an agency to help me apply for student visa. Although I wanted to leave China soon, I could not decide when my application would be lodged by my agency.

   The Tribunal was concerned about my delay m lodging my protection visa application. I explained I did not have friend here and had limited English. I felt helpless then. But the Tribunal does not accept my explanation. I do not believe I delayed in lodging my application in consideration of my situation and the time I lodged application. Further, even if the Tribunal considers I delayed in lodging my application, this delay is not much relevant to my case.

Ground 1

1. In relation to ground 1, the letter sent to the applicant dated 26 October 2016 informed the applicant that the Tribunal was unable to make a favourable decision on the information that was before the Tribunal. The applicant then attended the hearing to give evidence and present arguments. It is apparent from the face of the Tribunal’s reasons that the Tribunal raised the issues of concern in respect of the applicant’s claims at the hearing. On the evidence before the Court, the applicant had a real and meaningful hearing.

2. It is not apparent that the applicant asked for any adjournment or further opportunity to put on further evidence. Under s 5AAA of the Act, it was for the applicant to provide evidence to establish his claims. The proposition that the Tribunal did not allow the applicant an opportunity to prove his real family status is not supported by any evidence before the Court and is inconsistent with the Tribunal’s reasons that identify raising its concerns with the applicant in that regard pursuant to s 424AA of the Act.

3. The applicant was clearly given an opportunity, on the material before the Court, to engage with the concerns raised by the Tribunal. The Tribunal also complied, on the face of the material before the Court, with the requirement to offer the applicant additional time to correct or respond to the information or adjourn for review in respect to s 424AA of the Act.

4. These steps taken by the Tribunal were in respect of the information referred to in the Tribunal’s reasons on the applicant’s application for the Student visa. There has been identified no easily ascertainable material fact that could give rise to any duty to make inquiry.

5. The applicant’s disagreement with the adverse findings by the Tribunal in relation to the applicant’s credibility does not identify any jurisdictional error. The adverse credibility findings were clearly open and were not based on trivial or insignificant matters. Given the inconsistencies identified, as summarised above, including the delay by the applicant both in seeking the Student visa and in seeking the Protection visa as well as the other matters referred to, the adverse credibility findings cannot be said to lack an evident and intelligible justification.

6. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal’s adverse credibility findings, for the reasons already identified, were open to the Tribunal. The applicant’s assertion that the Tribunal did not understand why the applicant continued to visit the Town Government is, in substance, an invitation to this Court to engage in impermissible merit’s review.

2. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the applicant disagrees with the Tribunal taking into account the applicant’s delay in applying for the Student visa. Given the applicant’s claim of forced abortion to his wife, the delay was a logical and reasonable matter for the Tribunal to take into account in the adverse credibility findings.

2. The applicant otherwise identifies disagreement with the Tribunal’s adverse findings and seeks impermissible merit’s review. The contention that the delay in making the application for a Protection visa was not relevant to the applicant’s case is without substance. That delay was also a logical and rational matter for the Tribunal to take into account in relation to the applicant’s credit.

3. No jurisdictional error is made out by ground 3.

4. Accordingly, as the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 11 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  26 February 2020