Euy17 v Minister for Immigration
[2019] FCCA 361
•20 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EUY17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 361 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China as a Falun Gong practitioner – applicant not believed – applicant having previously sought protection in Australia using a different identity – Tribunal finding applicant used a bogus identity document for her current application, meaning that the application had to be refused – whether the Tribunal fell into error in so finding considered – non disclosure certificate concerning documents about the applicant’s identity – certificate treated as valid – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 48A, 65, 91WA, 424A, 425, 438 |
| Cases cited: Minister for Immigration v SCAR (2003) 128 FCR 553 |
| Applicant: | EUY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3356 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application lodged on 1 November 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3356 of 2017
| EUY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 October 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 8 February 2019.
The applicant is a citizen of the People’s Republic of China.[1] On 19 August 2014, the applicant made an application for a protection visa.[2] In a statement enclosed with her application dated 15 June 2014, the applicant claimed to fear harm on the basis of her having practised Falun Gong.[3] She claimed that, in 2011, she and another Falun Gong practitioner were detained for two years, during which time her health deteriorated. After she was released from detention, she came to the attention of the authorities who detained her overnight and reprimanded her for her practice of Falun Gong. She further claimed that, during the 2008 Olympic Games, members of her family were harassed. She claimed that, under those circumstances, she fled to Australia as a tourist.
[1] Court Book (CB) 5
[2] CB 1-39
[3] CB 30-32
On 5 September 2014, the applicant, through her then representative, sent to the Minister’s Department (Department) a statement made by a witness in support of her application, as well as an English translation of a judgment of the Henan Province Kaifeng Gulou District People’s Court dated 15 May 2011.[4]
[4] CB 50-54
On 29 October 2014, the applicant’s then representative provided to the Department various photographs in support of the application.[5]
[5] CB 55-56
On 30 October 2015, the delegate made a decision, pursuant to s.65(1)(b) of the Migration Act 1958 (Cth) (Migration Act), to refuse to grant a protection visa to the applicant.[6]
[6] CB 84-97
Merits review
On 18 November 2015, the applicant applied for review of the delegate’s decision.[7]
[7] CB 98-100
On 28 June 2016, a notification was given to the Tribunal pursuant to s.438(2) of the Migration Act that a document containing an “allegation” had been given to an officer of the Department “in confidence” (Notification) and that, therefore, s.438(1)(b) applied to the information.[8] The Notification also contained advice to the Tribunal that it should not, “without appropriate consideration”, disclose the information to the applicant or her representative because it was given in confidence.
[8] CB 105
On 15 September 2017, the Tribunal sent to the applicant a letter to invite her, pursuant to s.425(1) of the Migration Act, to appear before it on 3 October 2017 to give evidence and present arguments in relation to the issues arising on the review.[9] The applicant appeared on that day.[10]
[9] CB 120-125
[10] CB 126-129
On 10 October 2017, the Tribunal affirmed the decision under review.[11] The Tribunal’s key findings and reasons may be summarised as follows:
a)at the hearing, the applicant told the Tribunal that she had never held a passport other than the one that she produced to the Department and the Tribunal, that she was not known by any other name, that she had never been to any other country and that she had never been to Australia before her arrival in 2014;[12]
b)in response to this evidence, the Tribunal disclosed to the applicant the contents of the Notification, as “it went to [her] credibility … and her truthfulness as a witness”. The material the subject of the Notification “alleged that the applicant had entered Australia in 2006 on a visitor visa on a passport with [a different] name and [a different] date of birth”. The applicant “had applied for a protection visa which was refused by the [D]epartment”;[13]
c)the applicant was invited to respond to, or comment on, this information. Those parts of the applicant’s responses that are relevant to the present application are discussed below;[14]
d)the Tribunal found that the applicant’s passport was a “bogus document” within the meaning of paragraph (c) of the definition of that phrase in s.5(1) of the Migration Act because, as she conceded, it “was not issued in her correct name and date of birth”;[15]
e)the Tribunal was not satisfied that the applicant had a reasonable explanation for providing the bogus document;[16]
f)the Tribunal found that s.91WA of the Migration Act applied and that, therefore, the applicant must be refused a protection visa;[17]
g)apart from the operation of s.91WA of the Migration Act, the Tribunal affirmed the delegate’s decision on an alternative basis, namely, that the applicant was not a credible witness and her claims could not be given any weight;[18] and
h)accordingly, the applicant did not have a well-founded fear of persecution on the basis of her practice of Falun Gong.[19]
[11] CB 137-144
[12] CB 141 [25]
[13] CB 142 [26]
[14] CB 142 [27]
[15] CB 142-143 [30], [35]
[16] CB 143-144 [32]-[35]
[17] CB 144 [35]
[18] CB 144 [36]
[19] CB 144 [37]
The present proceedings
These proceedings began with a show cause application filed on 1 November 2017. The applicant continues to rely upon that application. There are three grounds in it:
1. When lodging my protection visa application, I did tell my agent about my previous travel into Australia in 2006. However, the agent did not disclose this information to DIBP.
2. Changing my name was part of the reasons for my protection application. The two passports I used to travel to Australia are true documents. The Tribunal said my passport in the name of … (Date of Birth …) is a bogus document, this is wrong. The passport is a true document which I got from China legally.
3. The Tribunal said that I could not remember the number of times each exercise of Falun Gong needed to repeat, so I am not a true practitioner. This is wrong as I was a bit nervous at the hearing.
The application is supported by a short affidavit filed with it which I received as a submission. In addition to the court book filed on 16 January 2018, I have before me as evidence the affidavit of Arielle Zinn made on 29 March 2018. There is a confidential exhibit to that affidavit[20] which are documents covered by a purported non disclosure certificate. The purported certificate is reproduced at CB 105.
[20] Exhibit ABZ-1
I invited oral submissions from the applicant at the trial on 15 February 2019. She essentially restated the grounds in her show cause application. She asserts that the Tribunal made the wrong decision based on its own perception and that she is fearful to return to China. She admitted that she did not disclose in her present visa application her previous visit to Australia and when asked about it at the Tribunal hearing, she did not answer straight away. The applicant submits that she was afraid of the consequences for her in China if the truth was revealed. She claims that she needed to use a false identity in order to depart China. These claims were reiterated in a post hearing email submission on 19 February 2019.
Consideration
I raised with counsel for the Minister the question whether the protection visa application in issue would be statute barred by s.48A of the Migration Act, given that the applicant had previously made a protection visa application in the migration zone which had been refused. Counsel was unable to give a definitive answer. It may be, however, that the Department considered that s.48A did not apply as the applicant had voluntarily departed Australia before returning to make her second visa application. In any event, this was not an issue considered by the Tribunal.
In my opinion, the grounds of review advanced by the applicant in this case do not establish any jurisdictional error by the Tribunal. In that regard, I accept the submissions made on behalf of the Minister in relation to those grounds.
Ground 1
The Tribunal’s reasons for decision record that, during the hearing, the applicant “said that she did not disclose [her] previous travel to Australia [in 2006] because it was not relevant and she no longer had th[e] passport [she used at the time]”.[21] According to the Tribunal, the applicant “then changed her answer to say that she did tell her migration agent when she lodged the forms about her travel in 2006”.[22] This evidence was considered at [36],[23] where the Tribunal found that the applicant was “not a credible witness” and that it could “give no weight to her claims”. The applicant’s failure to disclose her previous travel was found to be “an attempt by [her] to prevent the [D]epartment and the Tribunal from looking at her previous application and to hide information from the Tribunal which may have been adverse to her current application.” The applicant never gave evidence to the Tribunal to the effect that she told her agent about her previous travel to Australia, nor was there anything in the evidence before the Tribunal to suggest that she did. Accordingly, the Tribunal did not make a jurisdictional error by not considering a claim that was never raised.[24]
[21] CB 142 [27]
[22] CB 142 [27]
[23] CB 144
[24] NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 19 [60] per Black CJ, French and Selway JJ
Ground 2
During the hearing before the Tribunal, the applicant conceded that her passport which she used to travel to Australia in 2014 was a bogus document, as it referred to the applicant by a different name and date of birth. The Tribunal accepted that concession and found that the applicant had given a bogus document. For the applicant now to say that the Tribunal’s decision should be set aside because the passports that she used to travel to Australia were “true documents” or that she obtained her current passport from China “legally” is an appeal to the merits. The Tribunal was not under a duty to consider claims that were neither made expressly nor arose tolerably clearly on the material before it.
Ground 3
There are two responses to this ground.
First, the fact that the applicant may have been “nervous” during the hearing before the Tribunal and gave incorrect answers to questions posed to her about Falun Gong does not demand the result that the Tribunal failed to comply with its duty under s.425(1) of the Migration Act. The critical question is whether the applicant was given a real and meaningful hearing.[25] In the absence of a transcript of the hearing, the Tribunal’s reasons for decision suggest that the applicant engaged with the member, understood the questions that were asked of her and was responsive to those questions, even if her answers were inconsistent with evidence that she had given during the visa application process.[26]
[25] Minister for Immigration v SCAR (2003) 128 FCR 553 at 561-562 [37]-[41] per Gray, Cooper and Selway JJ
[26] See CB 141-143 [25]-[29], [34]
Secondly, the Tribunal’s account of the hearing and its finding that the applicant was not a genuine Falun Gong practitioner[27] do not establish that it adopted the role of “arbiter of doctrine”.[28] On the contrary, the Tribunal explored not only the applicant’s knowledge of particular Falun Gong exercises but also the length of time that she had practised Falun Gong and the inconsistencies that emerged from the evidence that she gave both to the delegate and the Tribunal.[29] That approach does not sound in jurisdictional error.
[27]CB 144 [36]
[28]Minister for Immigration v SZLSP (2010) 187 FCR 362 at 374-375 [37]-[39] per Kenny J
[29] CB 142 [29], 143 [34]
The non disclosure certificate
The non disclosure certificate in this case was treated as valid by the Tribunal, and in my view, given that it relates to information apparently given to the Department in confidence and having regard to the documents themselves, which I have inspected, which bear on the identity of the applicant, the principal issue is one of disclosure of the certificate to the applicant by the Tribunal.
In the present case, the Tribunal chose to disclose the certificate. At [26] the Tribunal stated:[30]
The Tribunal then decided to disclose to the applicant the contents of the s.438 certificate. I decided that such disclosure was appropriate because it went to the credibility of the applicant and her truthfulness as a witness. The material had been provided by Border Force and alleged that the applicant had entered Australia in 2006 on a visitor visa on a passport with the name … and date of birth …. She had applied for a protection visa which was refused by the department. I was able to find out that the applicant had applied for review of the decision to the Tribunal (Case …) but that the review was out of time and the Tribunal had no jurisdiction to hear the review. Border Force advised in the material that the applicant had departed Australia in 2011.
[30] CB 142
The applicant responded as detailed by the Tribunal at [27]-[29].
In my view, this case can be distinguished from the cases recently dealt with by the High Court in Minister for Immigration v SZMTA; CQY15 v Minister for Immigration; BEG15 v Minister for Immigration.[31] In the present case, the Tribunal met its obligation of procedural fairness by disclosing the certificate issued under s.438. Accordingly, and subject to my observations below, no question arises as to whether the Tribunal adopted the wrong procedure under Part 7 of the Migration Act or denied the applicant procedural fairness.
[31] [2019] HCA 3
Although not raised by the applicant, the Minister raised as a model litigant the question of whether any duty of disclosure arose under s.424A(1) of the Migration Act.
The information the subject of the Notification comprised an e-mail from the Australian Border Force (Border Force) to the Department dated 28 June 2016, to which was annexed a letter from Roads & Maritime Services (RMS) to Border Force seeking the production of certain personal information pertaining to the applicant. Considered as a whole, these documents contained the following statements:
a)“Please see attached, a referral from NSW RMS re, possible identity fraud”;
b)“DIBP records show” that the applicant “first entered Australia in 2006, using the identity of … and applied for [a] protection visa, which was refused and all avenues of reviews were exhausted”;
c)“DIBP records show” that the applicant “entered Australia again in 2014, using the identity of … and applied for [a] PV again, which has been refused and is currently with the RRT for review”;
d)“Photographs of both identities are available electronically in DIBP system and are fairly comparable”; and
e)RMS requested personal information about the applicant “for investigation of offences under” the Road Transport Act 2013 (NSW), Road Transport (Driver Licensing) Regulation 2008 (NSW), Photo Card Act 2005 (NSW) and Crimes Act 1900 (NSW).
None of the items of information listed above amounted, in their terms, to a rejection, denial or undermining of the applicant’s claims for protection.[32] The second, third and fourth items were not, in their terms, adverse. While the first and fifth items might be characterised as adverse, they did not, in their terms, reject, deny or undermine any of the applicant’s claims for protection. Rather, each went solely to the applicant’s credibility. Information merely going to credibility, however, is not caught by s.424A(1).[33]
[32]cf SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
[33]MZXBQ v Minister for Immigration (2008) 166 FCR 483 at 492 [29] per Heerey J; SZTNL v Minister for Immigration (2015) 231 FCR 204 at 220 [52] per Griffiths J
Further, the second and third items of information were not, of themselves, the reason, or part of the reason, for affirming the delegate’s decision. Rather, they became adverse only once the Tribunal engaged in a process of comparison of the content of the information. That process of comparison, however, does not enliven the duty in s.424A(1).[34]
[34]SZJBD v Minister for Immigration (2009) 179 FCR 109 at 133 [104] per Buchanan J (Perram J agreeing at 133 [107]); Plaintiff M174 v Minister for Immigration (2018) 92 ALJR 481 at 485 [9] per Gageler, Keane and Nettle JJ
In any event, in the light of the Tribunal’s description of what transpired at the hearing at [27],[35] the second and third pieces of information were given by the applicant for the purposes of the review within the meaning of s.424A(3)(b) of the Migration Act.[36]
[35] CB 142
[36] cf NBKT v Minister for Immigration (2006) 156 FCR 419
For these reasons, the Tribunal did not fail to comply with its duty under s.424A(1) of the Migration Act in respect of the information the subject of the Notification.
Conclusion
The applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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