EEI16 v Minister for Immigration

[2017] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2215

Catchwords:
MIGRATION – Application for a Constitutional writ – protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

Applicant: EEI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3768 of 2016

Judgment of: Judge Street

Hearing date: 12 September 2017

Date of Last Submission: 12 September 2017

Delivered at: Sydney

Delivered on: 12 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Donald
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3768 of 2016

EEI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 15 December 2016, affirming a decision of the delegate not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia on 23 May 2014, on a class FA subclass 600 business visitor visa. On 18 August 2014, the applicant applied for a Protection visa. The applicant claimed to fear harm as a result of being forced to leave China in order to escape arrest for practising Falun Gong. The applicant alleged that he practised Falun Gong in 2011 and was warned by a neighbourhood committee that someone had seen him putting something in another person’s door. 

3. In 2013 the applicant claimed he was arrested by police. The applicant alleged that he was tortured and abused by the police and taken to a detention centre and tortured for more than a month and then sent to a labour camp where he was beaten and made to do slave work. 

4. In mid-June 2013, the applicant says he developed physical symptoms and by August 2013, he was allegedly nearly dying and the police agreed to release him on bail. The applicant said that he travelled to Singapore and Malaysia in October 2013 and returned to China. The applicant alleged following his return, he was monitored more closely and had to flee.

5. At an interview with the delegate on 5 June 2015, the applicant expanded on his claims and alleged that prior to being detained he had handed out Falun Gong leaflets at night and that he did not practice Falun Gong prior to, or during his detention and that he was hospitalised for more than a month upon his release from the labour camp. The applicant claimed that he could not practise Falun Gong because he was being monitored after his release, and was harassed by the police at his home.

6. On 19 June 2015, the delegate refused the applicant’s application. The delegate found that the applicant was not a genuine Falun Gong practitioner and found implausible the applicant’s claims, making adverse credibility findings. The delegate found the applicant failed to meet the criteria under the Act for the grant of the visa.

Review by the Tribunal

1. The applicant applied for review on 16 July 2015. The applicant was invited to attend a hearing by letter dated 24 November 2016. The applicant appeared on that date to give evidence and present arguments. It is apparent from the hearing record that the hearing commenced late as the matter was supposed to commence, according to the invitation letter at 11:00am. The Tribunal in its reasons dated 15 December 2016, identified the background to the visa application. The Tribunal made reference to the applicant’s attendance at the hearing to give evidence and present arguments on 23 November 2016. The Tribunal noted the hearing was delayed because the Tribunal had to wait for an interpreter. The Tribunal noted that at the commencement of the hearing, the applicant informed the Tribunal that he was not in the mood to answer questions and that he informed the Tribunal that he had an illness.

2. The applicant was informed that if he had an illness, the Tribunal would adjourn that day, but would not adjourn merely because he was not in the mood. The Tribunal offered to take a short adjournment if the applicant wished to go and have lunch. The applicant declined to accept the adjournment and elected to continue with the hearing. The Tribunal noted that the hearing was conducted with the assistance of an interpreter. 

3. The Tribunal correctly set out the relevant law in annexure to the Tribunal’s decision.  The Tribunal summarised the applicant’s claims and the applicant’s evidence, as well as what occurred at the hearing before the Tribunal. In particular, the Tribunal explored with the applicant his return to China after travelling to Malaysia. Having identified the applicant’s claims and evidence, the Tribunal identified country information and did not accept the applicant was a practitioner of Falun Gong or perceived to be, or was a member, supporter, practitioner or follower of Falun Gong who handed out Falun Gong pamphlets in China as the Tribunal was not satisfied the applicant was a witness of truth. The Tribunal identified rational and logical reasons in support of the adverse credibility findings.

4. The Tribunal found that the applicant was not a witness of truth.  The Tribunal did not accept that the applicant started practice as a Falun Gong from 2011, but did not practice much, that he was warned by the neighbourhood committee at the end of 2012 or detained, arrested, physically harms, tortured for more than a month in a detention centre, or that on 5 May 2013 he was sent to a labour camp, was beaten and tortured in detention.

5. The Tribunal did not accept that in August 2013 he was released on bail, went to hospital for a month and the police would come to his house and would arrest him, or that he was monitored. The Tribunal did not accept that he bribed a policeman to travel to Malaysia. The Tribunal did not accept that he wanted to practice Falun Gong, because he did not have the time back then and he is scared to practice now.  The Tribunal did not accept that he was not very familiar with Falun Gong in Australia as he needed to support himself and does not have enough time, so that that was the reason why he was not practising Falun Gong in Australia.

6. The Tribunal did not accept that the applicant handed out pamphlets at night, that he was monitored or followed by anyone, or that he was detained or harmed in any way.  The Tribunal did not accept that the applicant was perceived to be or was a member or supportive practitioner, or follower of Falun Gong, who handed out Falun Gong pamphlets in China, as the Tribunal was not satisfied the applicant was a witness of truth. The Tribunal found that the applicant did not practice Falun Gong in China or in Australia, and that he is not a Falun Gong practitioner or perceived practitioner.

7. The Tribunal did not accept the applicant was a witness of truth, having considered the applicant’s evidence singularly and cumulatively.  he Tribunal was satisfied that the applicant has no adverse religious or political profile or perceived religious or political profile in China prior to his departing to Australia. The Tribunal was satisfied that the applicant did not flee China fearing harm, and found that the applicant came to Australia to work.

8. The Tribunal was not satisfied the applicant would practice Falun Gong on return to China, or that he will hand out Falun Gong pamphlets or undertake any Falun Gong support activity.  The Tribunal was not satisfied the applicant is at risk of serious harm on his return to China.  The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. 

9. The Tribunal was not satisfied that the applicant met the criteria under s 36(2)(a) of the Act. The Tribunal found the applicant did not satisfy the requirements of complementary protection under s 36(2)(aa) of the Act, and affirmed the decision under review.

Hearing in this Court

1. On 11 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. The grounds of the application are as follows: 

   1. The interpreter of AAT was not responsible and professional. The AA T hearing was 11:00 am. The interpreter was about an hour late for the hearing. I thought this was not professional.

   2. AAT misunderstood my explanation totally. I told AAT officer I was seriously physically harmed for handing out Falun Gong pamphlets at night. And I admired that Falun Gong practitioners in Australia could hand out Falun Gong materials at day. However, AAT officers thought I could hand out Falun Gong materials at day in China, which was impossible. AAT mistook my meaning entirely.

   3. I told AAT officers that I was severely persecuted by Chinese government for Falun Gong. So I was feared to go back to China.  However, AAT thought the reason why I applied for protection visa was that I wanted to desire procrastination. AAT officer wrested the sense of my words.

   4. AA T officers thought that it was impossible that I could get my passport as I was severely persecuted by Chinese government for Falun Gong. However, I had explained that my passport was issued long ago. AAT officers did not believe what I said, but they could not provide a reasonable explanation.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.  The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the Tribunal’s decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

5. From the bar table, the applicant sought to take issue with the findings of the Tribunal in relation to when he handed out pamphlets. It is apparent on the face of the Tribunal’s reasons, that the Tribunal correctly understood the applicant’s claims and made adverse findings that were open to the Tribunal on the material before the Tribunal, and cannot be said to lack an evident and intelligible justification.

6. The applicant then indicated that he wanted to listen to the CDs. The Court sought to clarify with the applicant whether he was seeking an adjournment and the applicant indicated he wished to obtain an adjournment so he could listen to the CDs. The applicant contended that he had not received any CDs. The first respondent tendered a letter dated 22 May 2017, sending to the applicant’s address a copy of the CDs, following the directions hearing before the Registrar. The applicant contended that he had not received the letter and the CDs. The applicant offered no explanation as to why he would not have received the letter sent to his correct address. 

7. The applicant, from the bar table indicated that perhaps the letter was lost, and wanted to ring people to see if they might have received the CDs. The Court indicated to the applicant it did not propose to allow the applicant to make telephone calls at this stage of the hearing. On the evidence before the Court, I am satisfied that the applicant received a copy of the CDs as a result of the respondent sending them 22 May 2017. 

8. A notice of a request for an adjournment has been made by the applicant. The adjournment was opposed by the first respondent.  Whilst the applicant did complain from the bar table that the interpreter at the hearing before the Tribunal had been late, there was no suggestion by the applicant that there was any interpretation error in the conduct of the hearing of the review.

9. The applicant suggested that he had said to the Tribunal that he did not want to proceed because of the interpreter being late and because he felt dizzy. There is no suggestion in the Tribunal’s reasons that the applicant identified any physical ailment in relation to his participation in the hearing.  In fact, on the contrary, the Tribunal’s reasons identify indicating to the applicant that if he had an illness, an adjournment would be granted. It is not apparent that any material was raised before the Tribunal to suggest that the applicant was dizzy or had any illness and there is no evidence before the Court to suggest that the applicant in any way was disadvantaged by the late arrival of the interpreter.

10. On the evidence before the Court, the applicant had a real and meaningful hearing and the tribunal complied with its obligations under s 425 of the Act.  On the face of the material before the Court, the tribunal complied with its statutory obligations in the conduct of the review and complied with its obligations of procedural fairness in the conduct of the review.

Ground 1

1. In relation to ground 1, the late arrival of the interpreter, for the reasons already given, does not establish that the applicant was in any way disadvantaged in the conduct of the review by the Tribunal. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, the Tribunal in its reasons identified the applicant’s claims correctly and there is nothing to indicate that the Tribunal misunderstood the applicant’s claims and evidence. There is nothing to suggest that the Tribunal thought the applicant said that he handed material out in the day. The adverse finding in relation to the applicant handing out material at night was a credibility finding that was open to the Tribunal and the reasons provided by the Tribunal in respect of the adverse credibility findings were rational and logical and reasonably open on the material before the Tribunal. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, this in substance, reflects a disagreement with the adverse findings by the tribunal. For the reasons already given, the findings of the Tribunal were open. On the face of the Tribunal’s reasons, the Tribunal properly understood the applicant’s claims and the applicant had a genuine and meaningful opportunity to give evidence and present arguments. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. Ground 4 reflects a disagreement with the adverse credibility findings made by the Tribunal. The ability of the applicant and the conduct of the applicant in returning to China from Malaysia was relevant to the Tribunal’s findings in relation to the applicant’s credibility. The Tribunal was not required to accept the applicant’s assertions and whether the applicant was credible was a matter for the Tribunal to determine.  No jurisdictional error is made out by ground 4. 

Conclusion

1. Nothing said by the applicant from the bar table identified any jurisdictional error. As no jurisdictional error is made out by the application, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017