EKK17 v Minister for Immigration

[2018] FCCA 1273

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1273

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection (Class XA) visa – whether the Tribunal was biased in its findings – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 438, 476

Applicant: EKK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3036 of 2017

Judgment of: Judge Street

Hearing date: 18 May 2018

Date of Last Submission: 18 May 2018

Delivered at: Sydney

Delivered on: 18 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Day
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3036 of 2017

EKK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 8 September 2017, affirming a decision of the delegate not to grant the applicant a protection (Class XA) visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant entered Australia with his father on 18 January 2014 as the holder of a three month visitor visa which had been granted on 14 December 2013. It was not until 17 April 2014 that the applicant applied for a protection visa.

3. The applicant claimed to fear harm by reason of his father’s religion of Christianity and by reason of the absence of religious freedom in China. The applicant also claimed to fear harm by reason of an alleged land dispute that occurred in 2008 in which the police became involved. The applicant also alleged that he and his father attended a church gathering in 2013 and that the police raided his home and that he was arrested and detained.

4. On 14 January 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. An earlier and differently constituted Tribunal affirmed the delegate’s decision on 21 June 2016. That decision was set aside by orders made by the Federal Circuit Court of Australia on 7 February 2017.

The Tribunal

1. On 2 August 2017, the applicant was invited by letter to attend a hearing before the currently constituted Tribunal. The applicant appeared on that date to give evidence and present arguments. Following that hearing the Tribunal wrote to the applicant on 4 August 2017, pursuant to s 424A of the Act, inviting the applicant to comment on information in relation to the land dispute in respect of which the applicant had told the Department at an interview that he was not personally involved and did not have any relation to the alleged religious gathering, referring to oral evidence that had earlier been given by his father that was inconsistent with the applicant’s claim that he and his father were detained. No response was received to that invitation.

2. The Tribunal in its reasons dated 8 September 2017, identified the background to the application for review and the applicant’s claims. The Tribunal raised what occurred at the hearing before the Tribunal and raised concerns in relation to the applicant’s credibility, including that the applicant’s story changed with each telling and was different to his father’s evidence and that the Tribunal may not accept the alleged events occurred. The Tribunal referred to the issues raised in the s 424A letter. The Tribunal identified the relevant law. The Tribunal expressly referred to there being a s 438(1)(a) certificate, which the Tribunal found was invalid and of no effect. The Tribunal noted that the document the subject of the certificate was not relevant. That document has been tendered by the Minister. The document concerns the remittal of the matter to the Tribunal for further hearing and was clearly not relevant to the review. No practical injustice was suffered by the applicant by reason of the issue of the certificate or the non-disclosure of the document the subject of the certificate in the present case.

3. The Tribunal identified that the applicant did not appear to be recalling events that had actually occurred. The Tribunal referred to the applicant’s claim that he had been arrested and beaten together with his father in 2008. The Tribunal found the father did not state he was beaten, detained or harmed by the authorities in 2008 and found the applicant’s claims were inconsistent with the evidence at the hearing on 2 August 2017. The Tribunal did not accept the applicant’s father would have said that he was detained or harmed by authorities if that had not in fact occurred.

4. The Tribunal was not satisfied the applicant is a credible witness. The Tribunal was not satisfied the applicant’s land had been expropriated or that he and his father were detained along with others, or that the applicant was subsequently monitored, or that the applicant subsequently organised a petition or was warned. The Tribunal did not accept the applicant’s father believed in the Lord or advocated the benefits of believing in Jesus, or that that applicant’s father told him about religious freedom in the United States. The Tribunal did not accept the applicant’s father was baptised and became a Christian. The Tribunal did not accept the applicant and his father attended a Christian gathering. The Tribunal did not accept the police had detained and tortured the applicant and his father with others who attended the gathering. The Tribunal did not accept that the applicant and his father were forced to write guarantee letters not to attend cult gatherings. The Tribunal did not accept that the police monitored the applicant’s life after he was released or that the applicant or his father attended any Christian gatherings once he came to Australia.

5. The Tribunal was not satisfied that if the applicant returns to China he has a well-founded fear of persecution by reason of his race, religion, gender, age, political views or for any other reason. The Tribunal found the applicant did not meet the criteria in s 36(2)(a) of the Act.

6. The Tribunal rejected the entirety of the applicant’s claims, including the claim that he attended church in Australia. The Tribunal was not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there are substantial grounds for believing that there is a real risk the applicant would suffer significant harm. The Tribunal found the applicant did not meet the criterion under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 30 November 2017, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the nature of the hearing as explained by the Court. The applicant confirmed that he had had read to him the submissions of the first respondent. The applicant did not seek to put any submissions from the bar table.

3. The grounds in the application are as follows:

   I stated at hearing that after I was released, the police came every 2 to 3 days to my house to monitor me. Since I did not mention this part in my written statement, so I complemented it at haring. But I did not imagine that this supplement because the inconsistency between my statement and what I said at hearing. If so, I did not understand the meaning of hearing, if everything at hearing is the same as the statement, AAT only needs to review the statement, there is no necessary to invited the applicant to the hearing.

   Since it passed many years, I can not remember every details very clearly. In my written statement I sated that I organised a petition after I was released and at the haring, I stated I did not do that. Actually, I can not remember if I participated the protest, because there were many things happened then and I was living a scared life every day, at the same time, my memory is not good. So the evidence is different, I hope AAT could understand my practical situation and analyse my case from a human-based perspective.

   My father was baptized on 5 October 2010 and became a real Christian. But AAT did not trust it. AAT suspected everything we provide, they do not have a proper attitude toward work, which is not fair to all applicants.

Paragraph 1

1. In relation to paragraph 1, this appears to be an endeavour by the applicant to explain the inconsistency in his evidence and to invite this Court to engage in merits review. This Court has no power to review the merits. Nothing in paragraph 1 of the grounds in the application identifies any jurisdictional error. On the material before the Court, it was open to the Tribunal to find there were inconsistencies in relation to the applicant’s evidence and it was open for the reasons given by the Tribunal as summarised above, for the Tribunal to reject the entirety of the applicant’s claims. Those adverse credibility findings cannot be said to be illogical or unreasonable. This included the inconsistencies with the applicant’s claims and his further evidence. The Tribunal expressly complied with s 424A of the Act in relation to inconsistencies in respect of the land dispute and the gathering which the Tribunal took into account in the adverse credibility findings. No jurisdictional error is made out by paragraph 1.

Paragraph 2

1. In relation to paragraph 2 of the grounds in the application, this appears again to be an explanation by the applicant for deficiencies in his evidence and in substance invites this Court to engage in impermissible merits review. This Court has no power to do so. Nothing in paragraph 2 identifies any jurisdictional error by the Tribunal.

Paragraph 3

1. Paragraph 3 of the grounds in the application reflects a disagreement with the adverse findings by the Tribunal. The adverse findings were open to the Tribunal for the reasons given by the Tribunal as summarised above. In substance, paragraph 3 of the grounds in the application also invites this Court to engage in impermissible merits review. The proposition that the Tribunal did not have a proper attitude is to be based on the adverse findings by the Tribunal and is not otherwise particularised. Any allegation of bias must be clearly alleged and properly proved. The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The summary of the hearing identified in the Tribunal’s reasons does not support the contention that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and the applicant had a real and meaningful hearing. For the reasons earlier given, the existence of the s 438 certificate did not give rise to any practical injustice in the conduct of the review in the present case. Nor did the absence of disclosure of the document the subject of the certificate. On the face of the material before the Court, there was no denial of procedural fairness in the conduct of the review and the applicant’s contention that the adverse finding was not fair in substance reflects an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by paragraph 3.

Conclusion

1. As the grounds in the application fail to make out any jurisdictional error, the application is dismissed.

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

Associate:

Date:  17 July 2018