Euc19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 568

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 568

File number(s):

SYG 3164 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

24 March 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection (Class XA, Subclass 866) visa – whether the Tribunal fully understood the applicants’ situations – whether the Tribunal treated the matter fairly – whether the Tribunal asked misleading questions to the second applicant – whether the Tribunal properly considered evidence in support of the applicants’ claims – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Kopalapilli v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Number of paragraphs:

41

Date of last submission/s:

11 March 2021

Date of hearing:

11 March 2021

Place:

Parramatta

Solicitor for the Applicants:

The Applicant appeared in person.

Solicitor for the Respondents:

Mr Jeyakkumar appeared on behalf of the First Respondent.

ORDERS

SYG 3164 of 2019

BETWEEN:

EUC19

First Applicant

EUD19

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	24 MARCH 2021

THE COURT ORDERS THAT:

1.Leave is granted to amend the Initiating Application to include orders sought that; a writ of mandamus directed to the Tribunal, requiring them to determine the applicant’s application according to law and an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.

2.The application is dismissed.

3.The applicants’ are to jointly and severally pay the first respondent’s costs fixed in the amount of $6000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicants’ are citizens of China. The first applicant is the father of the second applicant. In 2012, the second applicant applied for a TU 571 Student visa. The first applicant, applied at the same time for a Student Guardian TU 580 visa. Both visas were granted and the applicants’ arrived in Australia in May 2012. Both visas expired in March 2015 and both applicants’ became unlawful non-citizens.

2. On 8 May 2015, the first applicant applied for a Protection (Class XA, Subclass 866) visa with the second applicant included as a dependant applicant.

3. On 7 September 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants’ protection visas. The applicants’ sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 8 November 2019, the Tribunal affirmed the delegate’s decision not to grant the applicants’ protection visas.

4. The applicants’ now seek judicial review of the Tribunal decision

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision runs to some 13 typed pages and 71 paragraphs. After setting out the history of the matter, paragraphs 6 through to 12 of the Tribunal decision, deal with the criteria necessary for the grant of a protection visa. It is noted that the second applicant, the son, is not making his own claims for protection and is therefore seeking protection on the basis of being a member of the same family unit as the first applicant.

6. The Tribunal hearing occurred over 2 days as on the first day of the hearing, the first applicant’s son was unwell and unable to attend the hearing.

7. Paragraphs 14 through to 21 of the Tribunal decision deal with the first applicant’s claims. They may be summarised as follows:

   •In 2014, during the time that the first applicant was in Australia, a dispute occurred with village leaders and a developer over the forced acquisition of the first applicant’s land on which his home was built.

   •On 15 October 2014 the developer took action with the government’s assistance. All the residents were dragged out of their properties and the properties were demolished with a forklift. Rebels were beaten by unknown people. The first applicant’s wife and other people were arrested and detained. They were not released until they signed a demolition compensation agreement.

   •On 23 October, the first applicant’s wife went to the district government requesting justice. The protest was broken up by police. The first applicant’s wife, along with others, were detained for the reason of disrupting public service. The first applicant’s wife was released after five days following her signing a guarantee that she would not protest any further.

   •After learning about what happened to his wife, the first applicant posted an online thread criticising the district government. Shortly afterwards, the first applicant’s wife was taken to the police station for investigation. The police issued an inquiry notice requiring the first applicant to accept investigation after he returned to China.

   •The first applicant fears that he will be arrested upon his return, due to the remarks he made criticising the government.

8. In support of the first applicant’s claims, he provided documentation that included the original translation of his house registration, an original and a copy of a notice of house acquisition, the original and a copy of an inquiry notice to the applicant issued by a Public Security Bureau, dated 26 February 2015.

9. The first applicant also claims that his father had been hit by a car in China driven by the brother of the village head. The first applicant claimed that the incident was as a result of a vendetta for him complaining in relation to the property resumption and demolition of the property.

10. Paragraph 22 of the Tribunal decision, sets out detailed country information in relation to China, dated 3 October 2019. This information includes issues relating to land disputes, disputes over expropriated land and property demolitions and reports describing aggressive and sometimes violent action by private security contractors hired by property developers to manage protesters.

11. Country information also assessed that it is difficult to depart China on forged passport, but that organised irregular migration is common, often backed by a high level of sophistication with respect to counterfeit documentation for the visa applications. There are highly organised syndicates that provide packages, with targeted background stories, to support fraudulent documents used in visa applications. Organised “10 year migration plans” are also highly prevalent. These plans involving one member of a family securing permanent residency or citizenship in a country, and then applying for visas for the balance of their family that have remained in China.

12. At paragraph 26 and onwards of its decision, the Tribunal sets out six reasons why it has difficulty with the credibility of the applicants’ claims. Firstly, the applicants’ provided significantly different time frames as to key events facing the first applicant’s wife, following the property resumption that is set out in the written statement provided by the first applicant as part of his protection visa application.

13. Secondly, inconsistent evidence was provided as to where the first applicant’s wife was living in the period immediately before the property was resumed for demolition on 15 October 2015.

14. Thirdly, there was inconsistent evidence as to who lived in the property that was demolished.

15. Fourthly, the second applicant, the first applicant’s son, did not corroborate the claims that the family property was demolished and his mother detained in the period immediately after he returned from China.

16. Fifthly, no documentary evidence was provided to support the first applicant’s claim that he had published online criticism of Chinese authorities concerning the property demolition and subsequent difficulties faced by the first applicant’s wife. Further, the first applicant had been inconsistent in terms of the process by which this information was published online.

17. Sixthly, it is unsupported speculation on the part of the applicants’ that the accident which involved the first applicant’s father was “payback” for complaining about the property resumption and demolition.

18. While the Tribunal noted the documentary evidence provided by the first applicant, given country information which was set out in the decision as the prevalence of fraudulent documents emanating from China, and given the various credibility issues outlined above, the Tribunal was not satisfied that the supporting documents were genuine. The supporting documents did not overcome the cumulative impact of the credibility concerns identified by the Tribunal.

19. The Tribunal concluded that it was not satisfied as to any of the first applicant’s claims, including that his wife was residing at the family home that that was demolished on 15 October 2014, or that she was arrested and detained on that or any other occasion in relation to property resumption and demolition and inadequate compensation. The Tribunal was not satisfied that the first applicant’s wife petitioned against the property resumption. The Tribunal was not satisfied that the first applicant posted online criticism of the property resumption, demolition and his wife’s adverse experiences with authorities. The Tribunal was not satisfied that the Chinese authorities have an adverse interest in the first applicant or that they were seeking him based on him making online criticisms of Chinese authorities.

20. Given these findings, the Tribunal affirmed the decision of the delegate not to grant the first applicant a protection visa. The second applicant could not also be given a protection visa as his application was dependent upon the success of his father’s application.

    GROUNDS OF JUDICIAL REVIEW

21. The grounds of judicial review are set out in an Initiating Application filed with the Court on 2 December 2019. They are as follows verbatim:

22. There exist jurisdictional errors.

    Ground One

    The Tribunal may not fully understand some of the applicants’ situations, which led to doubts of credibility of applicants

    Ground Two

    Tribunal did not treat my case fairly. Considering it happened a few years ago, some minor inconsistency should be acceptable. Tribunal emphasised too much on my minor inconsistency for the purpose of doubting my credibility.

    Ground Three

    The Tribunal asked misleading questions to the second applicant, which led to the doubt of my credibility.

    Ground Four

    Tribunal did not properly consider evidences in support of my claims

    THE APPLICANT’S SUBMISSIONS.

23. The applicants’ appeared before the Court unrepresented, but assisted by an Interpreter. Despite Court orders, no written submissions were provided to the Court in support of the grounds for judicial review. In an Affidavit dated 27 November 2019 the applicants’ deposed the following:

    1.   The developer demolished my home with the government’s assistance.

    2.   My wife petitioned but she was mistreated by the government.

    3.   I posted what happened online.

    4.   My wife was taken away to the police station for investigation.

    5.   The police issued the inquiry notice requiring me to accept investigation after I return to China.

    6.   I was afraid to return to China.

24. At the commencement of the hearing, the Court ensured that the first applicant, who was speaking on his own behalf and that of his son, was in possession of the relevant Court Books. The Court also ensured that the first applicant had in his possession, a copy of the first respondents written submissions and that they had been interpreted to him. The Court further ensured that the first applicant had access to a pen and paper, so that he could take notes during the course of the hearing should he wish to.

25. The Court explained to the first applicant that it was undertaking judicial review and the difference between judicial review and merits review. The Court explained how the hearing would be undertaken, together with the applicants’ rights to make oral submissions initially and make a further response following the first respondent’s oral submissions.

26. The first applicant told the Court that he believed that he was asked misleading questions by the Tribunal. The applicant provided all relevant documents and the questions asked of him by the Tribunal were irrelevant. The Court explained to the first applicant that the Tribunal was entitled to ask him questions to test the veracity of his claims.

27. At the conclusion of the first respondent’s oral submissions, the first applicant was asked if he wished say anything further in reply. The first applicant stated that he had little knowledge of the law and was unable to put any additional material.

    THE FIRST RESPONDENT’S SUBMISSIONS

28. Counsel for the first respondent submitted that the applicants’ grounds of judicial review are not particularised and merely disagree with the Tribunal’s reasons for affirming the decision under review: (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

29. In relation to ground one, it was submitted that the Tribunal accurately considered the first applicants’ claims and properly assessed the evidence provided, before affirming the decision under review.

30. In relation to ground two, it was submitted that the applicants’ credibility is a factual determination for the Tribunal. Further, it is for the Tribunal to identify the material that it finds relevant to its reasoning and then determine the weight to be afforded to this material: (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]).

31. In relation to ground three, in the absence of the transcript of the Tribunal hearing to support the contention, it was submitted that there was nothing in the face of the Tribunal’s decision record to indicate that any improper or “misleading” questions were put to the second applicant.

32. In relation to ground four, it was submitted that the Tribunal adequately considered all the evidence of the sponsors supporting documents that were provided by the applicants’.

    CONSIDERATION

33. The Court firstly notes that the Initiating Application only seeks an order quashing the decision of the Tribunal. As this is insufficient to attract the jurisdiction of the Court, and the applicant is unrepresented, leave is granted to amend the application to include a writ of mandamus and an injunction precluding the Minister from taking further action based on the decision of the Tribunal.

34. It is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). A credit finding is sound if it was ‘open to the [Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility’: (see Kopalapilli v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547). Further, bland assertions of jurisdictional error cannot be made out in the absence of particulars: (see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

35. In relation to ground one, no material or particulars have been provided which would indicate that there was any doubt that the Tribunal accurately understood and considered the applicants’ claims and assessed them on the evidence provided. This ground merely invites impermissible merits review: (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]). Ground one fails.

36. Ground two asserts an over reliance by the Tribunal on inconsistencies in the applicants’ evidence in order to find that the applicants’ evidence lacked credibility. The Court is not satisfied that the credibility findings of the Tribunal were attended by any failure to afford procedural fairness, or reaching findings without a logical or probative basis or subject to legal unreasonableness. If it is a claim of bias, this needs to be strictly proven. The mere fact that the Tribunal made adverse credit findings in respect of the first applicant, does not give rise to an inference of bias itself or suggest that the decision-maker approached their task with other than a mind open to persuasion: (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). Ground two fails.

37. Ground three is again a bland assertion of jurisdictional error. In the absence of particulars this ground cannot be made out.

38. Ground four again is a bland assertion of jurisdictional error which in the absence of particulars must fail. Again, if anything, this ground simply invites the Court to undertake impermissible merits review. Ground four fails.

39. The Court is unable to ascertain any error on the part of the Tribunal in relation to the first applicant. The first applicant’s application fails. As the second applicant relies upon the first applicant’s claims, his application also fails.

40. As the applicants’ were unrepresented, the Court carefully considered the totality of the Tribunal decision, but was unable to ascertain any an unarticulated jurisdictional error.

    CONCLUSION

41. Accordingly, the application is dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       24 March 2021