EKK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1992
•12 November 2019
FEDERAL COURT OF AUSTRALIA
EKK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1992
Appeal from: EKK17 v Minister for Immigration and Anor [2018] FCCA 1273 File number: NSD 847 of 2018 Judge: LOGAN J Date of judgment: 12 November 2019 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision refusing to grant the appellant a protection visa – where two of the grounds of appeal were not raised before the Federal Circuit Court – where each new ground required evidence to be made out – whether leave to raise new grounds on appeal should be granted – where remaining ground concerned the Tribunal’s rejection of the appellant’s evidence on credibility grounds – whether the Tribunal’s decision was illogical or irrational Legislation: Migration Act 1958 (Cth) s 425 Cases cited: EKK17 v Minister for Immigration [2018] FCCA 1273 Date of hearing: 12 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 847 of 2018 BETWEEN: EKK17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
12 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The appellant be refused leave to raise grounds 1 and 3 in the notice of appeal, being grounds sought to be raised for the first time in this Court, as opposed to in the Federal Circuit Court of Australia.
3.The appeal be dismissed.
4.The appellant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 18 January 2014 lawfully, pursuant to a visitor visa. That visa entitled him to remain in Australia for a period of up to three months. Shortly before the end of that visa period, the appellant applied under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection visa. The appellant’s application for a Protection visa was refused by a delegate of the Minister on 14 January 2015. He applied to the then Refugee Review Tribunal for a review of that decision.
As it happened, prior to that review being heard and determined, the functions of the Refugee Review Tribunal were taken over by the Administrative Appeals Tribunal. So it was the Administrative Appeals Tribunal (Tribunal) which determined that particular review application. It did this on 21 June 2016. On that day, the Tribunal decided to affirm the Minister’s delegate’s refusal decision.
The appellant then sought the judicial review of that decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 7 February 2017, that court, by consent, quashed the Tribunal’s decision and remitted the matter to the Tribunal for re-hearing according to law.
On 8 September 2017, the Tribunal, differently constituted, decided, again, to affirm the Minister’s delegate’s visa refusal decision. Prior to making its decision on this second occasion, the Tribunal offered, and the appellant took up, the opportunity for a hearing. The hearing occurred on 2 August 2017. Following the hearing and prior to its decision, the Tribunal, on 4 August 2017, sent the appellant a letter by which he was invited to comment on particular information that the Tribunal sent out in the letter. The information in that letter comprised questions and related answers given in an interview between the appellant and officer of the Minister’s department on 5 January 2015, on the one hand, and in oral evidence at the earlier Tribunal hearing conducted on 21 June 2016, on the other. In the letter, the Tribunal highlighted why it was that each of the extracted questions and answers might be relevant. In essence, the Tribunal identified that the relevance might be in that the answers given on these occasions could be regarded as inconsistent with other evidence given by the appellant. The appellant was invited to reply by 18 August 2017, although the Tribunal indicated a willingness to consider extending that time for a good reason, providing that request was received by 18 August 2017.
The letter also, I note, made reference to language assistance being able to be sought via the Translating and Interpreting Service on a particular 1-3 number.
As it happened, the appellant neither made a response nor sought an extension of time in respect of his providing comments before 18 August 2017. The appellant sought the judicial review by the Federal Circuit Court of the Tribunal’s second affirmation of the Minister’s delegate’s refusal to grant a Protection visa. That application was heard and determined by the Federal Circuit Court on 18 May 2018: see EKK17 v Minister for Immigration [2018] FCCA 1273. The appellant has now appealed against the order of dismissal made by the Federal Circuit Court that day.
The following are the grounds of appeal:
1.The Tribunal was not professional, which caused that I could not provide more evidence.
2.AAT denied all the evidences I provided without any consideration.
3.The staff’s attitude was not nice, which caused me so nervous and no statement.
[sic]
It is also necessary to set out in full the grounds of review as pleaded in the judicial review application filed in the Federal Circuit Court. Those grounds are:
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 BECAME 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 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 ORGANIZED 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 MEMBER 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.
[sic]
It is necessary to set out the grounds of review in the Federal Circuit Court, because the Minister submitted that grounds 1 and 3 in the notice of appeal sought to raise new issues. In my view, the Minister’s submission is correct. Neither ground 1 nor ground 3 in the notice of appeal, even on a generous reading, could be regarded as raised by the grounds of review.
It does not follow from this, and the Minister did not submit that it did, that the appellant cannot raise new issues on the appeal, but there needs to be good reason for permitting new issues to be raised. It is to be remembered that, in matters of this kind, this Court exercises appellate, not original, jurisdiction. In considering whether or not to grant leave to raise new issues, the prospective merits of the grounds raising new issues is always a relevant consideration.
In this case, grounds 1 and 3 in the notice of appeal each requires an evidentiary foundation. In other words, to establish those grounds, evidence as to what occurred in the Tribunal or at the hearing or otherwise in dealings with the appellant, would need to be led. And it would be for the appellant to lead that evidence as he carries the onus of proof. The usual place in which that evidence would be led would be in the Federal Circuit Court. But, in theory, supporting evidence might be led in this Court in support of a new issue. And the interests of justice might require, exceptionally, the admission of that evidence on appeal.
However, the appellant did not seek, on the hearing of the appeal, to lead any such evidence. Neither was there any affidavit filed beforehand, to which, for example, was exhibited a transcript of proceedings before the Tribunal and an account by the appellant as to his dealings with Tribunal staff, either at the hearing or beforehand.
In theory, it is possible that the conduct of a Tribunal member at a hearing, either alone or taken in conjunction with the conduct towards an applicant for review by Tribunal staff, might be such as to deny an applicant a meaningful opportunity to present his or her case and this might amount to a failure to comply with s 425 of the Act. But there is just no supporting evidence for grounds 1 and 3.
In the circumstances, the appropriate course to take, in my view, is to refuse to grant leave to the appellant to raise grounds 1 and 3 in the notice of appeal. That is because for the reasons which I have given, neither ground 1 nor ground 3 has any evidentiary foundation and therefore has no reasonable prospect of success.
That then leaves ground 2. Having regard to the way in which the appellant made submissions this afternoon and his reference in particular to disagreement with the Tribunal’s inconsistency reasoning, it seems to me that ground 2 is really a shorthand way by the appellant of taking up all of the grievances found in his grounds of review in the Federal Circuit Court.
The Tribunal’s reasons disclose that it identified at the outset the foundation for the appellant’s visa claim. In essence, the appellant’s claim centred upon an absence of religious freedom in China and an appropriation of land by the authorities without reasonable compensation. The appellant’s father, whom he said came with him to Australia, had Christian beliefs. As a result of those beliefs, the appellant claimed that he and his father had been detained and tortured as each had attended Christian church activity. So it appears from the reasons that the Tribunal did not misapprehend the visa claim as made by the appellant.
The essence of the Tribunal’s reasoning in relation to credibility is found between [41] - [45] inclusive of the Tribunal’s reasons:
41.The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.
42.In his application, the applicant stated that in January 2008 the head of his village gave notice that their 3 acres of land would be expropriated to build a train station and that villages including he and his father talked to the village head to seek justice and later, quarrelled with police however at departmental interview on 5 January 2015, the applicant stated that he was not involved in that riot. The Tribunal finds this is inconsistent with the applicant's evidence at hearing which was that he was involved in that riot and arrested. In addition, even though the applicant stated at hearing that after he was released, the police came every 2 to 3 days to his house to monitor him, that was not in his written statement. In addition, in his written statement he stated that after he was released he organised a petition however when that was put to him at hearing, he stated he did not do that. The Tribunal finds that the changing nature of the applicant's evidence is such that it does not accept that he was recalling events that had actually occurred.
The applicant's claims that he was detained at a Christian gathering
43. At Tribunal hearing on 21 June 2016 it is orally recorded that the applicant's father told the Tribunal that he was arrested and beaten on only one occasion in 2008, however at hearing the applicant stated that two or three years after his land was taken (or in 2010/2011) he and his father were arrested and beaten at a Christian family gathering. The Tribunal finds that the applicant's father did not state at hearing on 21 June 2016 that he was detained or harmed by the authorities after 2008. This is inconsistent with the applicant's written statement and the applicant's evidence at hearing on 2 August 2017 which was that he and his father were at a Christian gathering two or three years after his land was taken and were arrested and beaten.
44. The Tribunal does not accept that the applicant's father would not have said that he was detained or harmed by authorities if in fact this had occurred.
45. The Tribunal is not satisfied that the applicant is a credible witness. The Tribunal is not satisfied that the applicant's land has 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 warned. Neither does the Tribunal accept that the applicant's father believed in the Lord or advocated the benefits of believing in Jesus, or that the applicant's brother told them about religious freedom in the United States, nor that the applicant's father was baptised and became a Christian, nor that the applicant and his father attended a Christian gathering, nor that the police arrested, detained and tortured them together with the others that were at the gathering. Neither does the Tribunal accept that they were forced to write guarantee letters not to attend cult gatherings again. Neither does the Tribunal accept that the police monitored his life after he was released, or that the applicant or his father attended any Christian gatherings once he came to Australia.
[sic]
Those paragraphs identify particular inconsistencies in the accounts given over time by the appellant of his or, as the case may be, his father’s experiences in China. They take up particular passages in earlier statements as put to the appellant by the Tribunal’s letter of 4 August 2017 for comment. The learned primary judge found that the reasoning in these passages was not an illogical or irrational basis for an absence of satisfaction by the Tribunal member as to the appellant’s credibility. I respectfully agree with that conclusion. The Tribunal’s reasoning is certainly compressed, but there are inconsistencies identified on subjects in respect of which the Tribunal was entitled to conclude that there ought to have been consistency, given their significance. The Tribunal had the benefit of hearing oral evidence from the appellant and taking this into account in conjunction with earlier inconsistencies.
In the ordinary course, credibility conclusions are matters par excellence for an administrative decision-maker such as the Tribunal. Credibility conclusions are not impossible to challenge, but where there is a logical foundation for them, no jurisdictional error is revealed. The learned primary judge also regarded the grounds of review as seeking, in one way or another, a form of review on the factual merits by the Federal Circuit Court. His Honour’s conclusion that this was not permissible was undoubtedly correct.
Having observed the appellant this afternoon, I was left with a feeling that he disagreed genuinely with the Tribunal’s reasons. But genuine disagreement does not in itself amount to jurisdictional error. It was for the appellant to support his claim for a visa as best he could. He took up the opportunity to do this, not just by filing documents but by giving evidence at a hearing. It is just one of those hard cases where, for reasons that are logical, the Tribunal was not satisfied as to the basis of his claim.
What necessarily follows from this is that the appeal must be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 26 November 2019
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