FEB17 v Minister for Immigration
[2018] FCCA 390
•19 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 390 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal dealt with issues beyond its jurisdiction – whether the Tribunal was unreasonable in its approach to evidence – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 476 |
| Applicant: | FEB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3668 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 19 February 2018 |
| Date of Last Submission: | 19 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2018 |
REPRESENTATION
| The Applicant appeared by video link. |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3668 of 2017
| FEB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 20 October 2017 affirming the decision of a delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant arrived in Australia in March 1997 as the holder of a Business (Temporary - Short Stay) visa. The applicant was granted a subclass 456 Business (Temporary - Long Stay) visa in July 1997, which was valid until July 2001. From the expiry of that visa in July 2001, the applicant then remained unlawfully in Australia until he was apprehended in May 2005. The applicant then made an application for protection, which was determined by a differently constituted Tribunal. That Tribunal granted the applicant a Temporary Protection visa. The applicant was subsequently granted in September 2008 a subclass CD-851 (Resolution of Status) visa.
In mid-2009, the applicant was arrested and has been held in custody since then until being transferred into detention. In April 2013, the applicant was convicted of drug-related offences by an Australian Court and sentenced to a term of imprisonment of six years and four months.
On 24 November 2015, the Department cancelled the applicant’s subclass CD–851 (Resolution of Status) visa. Following that cancellation, the applicant was released from prison and transferred to a detention centre. In August 2016, the applicant was again convicted of a drug-related offence and sentenced to five months imprisonment. On release from prison, the applicant was again transferred to Villawood Detention Centre.
On 15 June 2017, the delegate refused to grant the applicant a protection visa which was applied for by the applicant on 18 January 2017. The applicant claimed to fear harm because from 1989 onwards he covertly met with others in China to share pro-democracy views. Between 1989 and 1997, the applicant alleged he provided money to people in pro-democracy movements. The applicant alleged that, at the time he came to Australia, he lent money to a friend and that the friend was not willing to return it and falsely accused the applicant of extortion and bank fraud. The applicant feared he would not get a fair trial if he was returned to China.
The applicant also alleged that from 1999, he undertook pro-democracy activities in Australia and that he met a pro-democracy activist called Z. The applicant claimed that he assisted Z with his activities in Australia, including organising meetings of political dissidents and collecting money. The applicant alleged that after his release from prison he and his wife continued contact with Z. The applicant alleged the Chinese authorities became aware of the applicant’s political activities in Australia and his association with Z. The applicant alleged that if returned to China he would be arrested and harmed because of his association with Z and the fraud allegations made against him.
The Tribunal
The applicant lodged an application for review on 18 June 2017. The applicant was invited to attend a hearing before the Tribunal on 21 July 2017, and the applicant attended that hearing to give evidence and present arguments. The applicant’s wife was also a witness.
The Tribunal in its reasons, dated 20 October 2017, identified the background to the application for review and summarised the relevant law. The Tribunal identified having concerns with the credibility of the applicant and that it was necessary in that regard to summarise the applicant’s migration history. The Tribunal summarised the applicant’s claims and evidence. In relation to the Tribunal’s concerns in respect of the applicant’s credibility, the Tribunal identified the substantial delay in relation to the applicant’s application for the first protection visa. That was a matter in respect of which it was reasonable and logical for the Tribunal to take into account.
The Tribunal found that from 2001, the applicant was in Australia unlawfully and the Tribunal did not believe that he would fail to take steps to apply for protection because he did not have documents regarding his identity. The Tribunal found, after the applicant’s arrival in Australia, that the applicant had been able to obtain a further visa and the Tribunal considered that the applicant would have been familiar enough with the process to be able to take steps to seek protection. The Tribunal disbelieved the applicant’s claim that he chose not to do this because he did not have documents regarding his identity.
The Tribunal then turned to the applicant’s claim concerning political activities. The Tribunal noted that, according to the first Tribunal in the first application for protection, the applicant lodged a written statement in which he advanced particular grounds. According to that statement, those grounds were that soon after the applicant arrived in Australia, family in China told him that the authorities were looking for him because X had implicated him in fraud. The applicant alleged he was afraid to return to China on that basis. It was only at the first Tribunal hearing that, for the first time, the applicant claimed that in addition, he was afraid to return to China because he was financially supporting opposition parties in China when he knew people from that party who had been imprisoned and he had been undertaking political activities in Australia, including associating with a person called Z.
The Tribunal observed that the applicant’s failure to advance these important claims in his first written statement cast doubt over his credibility as a witness, the credibility of these claims and the genuineness of his fear of harm based on those claims. The Tribunal referred to the circumstances in which the applicant applied for protection, knowing of his alleged claims and knowing that he may not be believed and notwithstanding any view he held that governments agreed to return him to China. It was in those circumstances the Tribunal did not accept the applicant would fail to mention such important information in the written statement concerning his political activities accompanying his application for those reasons.
The Tribunal found that, if the applicant did truly undertake political activities, including meeting Z in China and, if he genuinely feared harm on that ground, including because Chinese authorities had gone to his family to find him because of them, he would have advanced those claims in the written statement he lodged in his first protection visa application. The Tribunal found the applicant’s failure to do so to be inexplicable.
The Tribunal’s conclusions on credibility
The Tribunal considered the circumstances cumulatively and identified that it had concerns and that those concerns demonstrated and formed the basis on which the Tribunal found the applicant is not a witness of truth and that his claims about the Chinese authorities going to his family to find him and undertaking political activities in China were not believed. The Tribunal also disbelieved the applicant’s claims about him enquiring with others about the Chinese police going to his family to locate him, including enquiring with X and the Chinese police themselves, and being told that he had been implicated in fraud.
The Tribunal disbelieved the applicant’s claims that the Chinese police went to his family to find him, that he undertook political activities in China and that he enquired with and was told by others that this related to being implicated in fraud. The Tribunal disbelieved the applicant’s claims that X, the Australia authorities and Chinese authorities have all colluded against him, and which the applicant alleged this is a reason for the Chinese authorities going to his family home to locate him and implicate him in fraud. The Tribunal did not believe the applicant undertook political activities in China, that the Chinese police went to his family to locate him after he came to Australia, and that X, Australia authorities and Chinese authorities have colluded against him, including in some way that the applicant has been implicated in fraud.
The Tribunal referred to the applicant’s claims concerning Z. The Tribunal did not believe the applicant undertook political activities in China, including meeting with Z for the reasons given above by the Tribunal. The Tribunal found the applicant not to be a witness of truth, and regards all the evidence from the applicant relating to undertaking political activities in Australia to be unreliable.
The Tribunal turned to the evidence advanced by the applicant in his claims, and in particular his wife’s purported corroboration about communications with Z and Z staying with them. The Tribunal found the applicant’s wife not to be a witness of truth. The Tribunal regarded the applicant’s wife and her claims about the applicant to be unreliable. The Tribunal was not persuaded that the applicant’s evidence about his political activities here, including those with Z, are true.
The Tribunal referred to an affidavit provided by Z made in September 2009, and referred to the contact and occasions the applicant is alleged to have collected and provided donations to Z’s organisation. The Tribunal referred to the findings made by the first Tribunal in relation to Z. The Tribunal referred to the applicant’s submissions and provision of information about Z’s organisation and photographs. The Tribunal carefully considered the information and photograph but found they did not demonstrate that the applicant’s claims about his political activities here are credible.
The Tribunal did not accept the applicant’s claim that he couldn’t access a website from the detention centre. The Tribunal found the applicant’s own evidence in relation to political activities in Australia, including about remaining in contact with Z is not reliable. The Tribunal found the wife’s evidence and the applicant’s about her dealings with the consulate were false and found the applicant’s wife not to be a witness of truth. The Tribunal did not accept the applicant’s claim that a former Chinese embassy employee told him that the Chinese government knew of his activities here.
The Tribunal found there’s no credible evidence that the Chinese authorities are aware of the applicant undertaking political activities in Australia, that they hold any adverse interest in him, and that they or anyone else in China wish to harm him. The Tribunal made express reference in considering whether enquiries should be made with Z in respect of the applicant’s political claims. The Tribunal identified reasons for not making contact with Z, and in particular because the applicant is not a witness of truth. In other words, the details would not be reliable. The Tribunal was not satisfied that whoever responded to the Tribunal by these means would be actually Z. The Tribunal also took into account the period over which the applicant had been in custody in considering the utility of attempting any contact with Z. The Tribunal did not accept that seeking evidence from Z would substantiate the applicant’s claims given their nature relating to corruption within Australia authorities.
Tribunal’s assessment of risk of serious harm
The Tribunal found there is no real chance that the applicant would suffer serious harm on return to China and that he does not hold a well-founded fear of persecution within the meaning of s 5J(1) of the Act.
The Tribunal referred to and took into account issues raised in respect of the applicant’s mental health and found they did not account for the grounds upon which the Tribunal finds the applicant not to be a witness of truth. The Tribunal found that its concerns in relation to the applicant’s evidence are not explained by the applicant’s mental health and that the applicant did not claim that they were. Further, the Tribunal noted the applicant had not claimed to be at risk of harm in China due to his mental health, nor is there any evidence before the Tribunal to that effect. It was in these circumstances the Tribunal found that there are no substantial grounds of believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk the applicant would suffer significant harm.
The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
On 21 December 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant took advantage of that opportunity by filing an amended application and two affidavits.
In relation to the first affidavit of 25 January 2018, objection was taken to the contents of Annexure B to that affidavit. From the bar table, the applicant suggested that something had occurred outside the hearing room before the Tribunal and it was on that basis that the Court omitted Annexure B subject to relevance. Nothing has been said by the applicant to identify any basis upon which the material in Annexure B could be said to advance any ground of procedural unfairness concerning conduct by the Tribunal. In those circumstances, Annexure B, which was admitted subject to relevance and is found to be irrelevant and its admission into evidence is rejected. Annexure A of the affidavit was, in substance, the applicant’s claims in the amended application.
The second affidavit of 1 February 2018, is one in which the applicant provided submissions in support of the grounds in Annexure A of the first affidavit and further material relating to other proceedings. The use of the other material in the other proceedings was suggested by the applicant to impact on the timing of the hearing before the Tribunal. There was no logical or rational or probative basis upon which the material referred to in Annexure D could affect the issues before this Court in respect of judicial review. It was in those circumstances, the tender of that material was rejected.
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 to the applicant. 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 decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the amended application would be dismissed with costs.
The Court explained that 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.
The applicant’s submissions from the bar table
From the bar table, the applicant took issue with the adverse credibility findings made against him and also in relation to his wife. The Tribunal provided logical, rational and reasonable reasons in support of the adverse credibility findings. Those reasons included the applicant’s delay and the failure by the applicant to raise, at the time of his first application for protection, his alleged political activities claim. The adverse credibility findings in relation to the applicant and his wife cannot be said to lack an evident and intelligible justification and was open to the Tribunal for the reasons summarised above. Nothing said by the applicant from the bar table in that regard identified any jurisdictional error.
The applicant also raised from the bar table concerns in relation to the reference by the Tribunal to the applicant’s mental health and the Tribunal asking the applicant questions about his mental health. It was appropriate for the Tribunal to raise with the applicant at the hearing, the issues concerning the applicant’s mental health. The raising of issues by the Tribunal during the hearing of the applicant’s mental health are not conduct by reason of which a fair-minded lay-observer might reasonably apprehend that the Tribunal might not bring an independent and an impartial mind to the determination of the matter on its merits. The Tribunal’s reasons reflect an orthodox approach to the conduct of the review. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The Tribunal found the applicant’s mental health did not provide an explanation for the credibility concerns and it was open for the Tribunal to so find. The applicant’s complaint in relation to mental health issues does not identify any jurisdictional error and in substance, appears to be an invitation to this Court to engage in impermissible merits review. This Court does not have power to review the merits.
The applicant also sought to make a complaint about the Tribunal’s finding in relation to his claims and alleged that there had been some person outside the Tribunal guiding or directing the Tribunal member. There is no evidentiary basis to support those allegations. An allegation of bias must be clearly alleged and properly proved. No allegation of bias is made out.
On the face of the material before the Court, the Tribunal approached the review with an open mind reasonably capable of persuasion as to the merits. The applicant’s assertions of collusion or pre-determination by the Tribunal have no basis on the material before the Court. The adverse findings made by the Tribunal are not conduct by reason of which a fair-minded lay-observer might reasonable apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
The applicant also put submissions in relation to what he alleged was misleading information that had been provided. This was an invitation to this Court to engage in impermissible merits review. The applicant asserted from the bar table that the Tribunal had predetermined the matter and had not acted fairly on the material before the Court. There is no basis to support any such assertions. On the material before the Court, the Tribunal conducted the review in accordance with the requirements of procedural fairness and the applicant had a real and meaningful hearing. There is no basis to hold that the Tribunal had predetermined the matter or prejudged the matter.
The applicant also made reference to the person Z and his claim concerning political activity. Those submissions were in substance an invitation for this Court to engage in impermissible merits review. The Tribunal took into account the claims concerning Z and found reasons for not contacting Z. These reasons summarised above were logical and reasonable. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. There is no basis to find any fundamental error, or error of principle, as alleged by the applicant.
The grounds in the amended application as follows:
1. As the basis of decision of AAT review, the determination of the fact, and the identification of the evidence for decision, had significant and obvious error in logic and position that the member should be.
**Although limited resource, but I had tried my best to give the Tribunal factual information and official documents in June & October 2017 and during the review hearing of 21 July 2017, to indicate that some of the information from the police and the initial decision maker of DIBP, as well as their statement on specific events was inaccurate and incorrect, even was false.
I had also indicated the existing doubts.
Such as the extortion event of 2005, my migration history and the five-month imprisonment event of 2016, and the mental health issue etc.
However the Tribunal had ignored that, the AAT member used a lot of adjectives in his statement, but did not determine the specific criteria for assessing “witness of truth”. That should be based on accurate information and official documents, or based on the provider’s level of identity.
Such logic error was not out of negligence, but rather subjectively done. That stemmed from the error of his position and principle.
The wherefore will be determined by third-party investigation report of Australian Commission for Law Enforcement Integrity. (Refer to be as ACLEI)
2. That was obviously inappropriate to establish the parties of the police and DIBP as the natural “witness of truth” in advance, and the reliable sources of evidence. That was contradicted with independent position claimed by AAT.
**that was not appropriate to naturally equate the credibility and the identity of the police.
Specifically the parties be represented by Mr. John Michael Giorgiutti, who was the director of New Court Wales Crime Commission and was in the other room during the AAT review hearing.
That would be contradicted with independent position claimed by AAT.
The facts also will prove that was extremely absurd.
This was error in principle and position.
3. The information of quoting from the police and DIBP by the member, of which although had been made changes for few times, but still not to be able to be accurate. Especially some of which had been indicated to be incorrect information by formal Official document submitted to AAT by me.
However, those had been as basis of the decision by the member.
**as mentioned above in paragraph (1), in their statement of the initial decision maker of DIBP and the AAT member, they all had tried to carefully edit and modify the contents of those relevant issues.
But still not be able to be accurate.
4. The identification of the nature of specific and individual issues went beyond the competence and jurisdiction area of AAT, such as corruption and integrity of the police issues, and even mental health issue were not only contradicted with the speech of the member of AAT during the review and the contents of official documents submitted to AAT by me, also contradicted with the independent position claimed by the tribunal.
** In fact, the member was engaging in what he denied.
Using “mental illness” issue as a functional tool to mask and downplay, even denied the truth, that skill was not the finding of the AAT member, but from the instruction of third-party and also original creator.
However the member had a major loophole, he completely ignored the documents from Justice Health & Forensic Mental Health Network NSW I provided to the Tribunal.
Those documents had been clearly shown that even the professionals responsible for this specific medical matter, had no courage to discuss their ugly work.
That was obvious error due to his error in position.
5. The inaccurate and incorrect information of PV application history of mine, quoting by AAT in their decision, had twisted the truth of this migration issue.
**In DIBP folder of my PV application historical record, there are many inaccurate and incorrect information from the NSW police, some of it was even false.
They also like to make the allegation directly using the speech of low-level rogue and paranoiac junky.
I had indicated the existing doubt to the Tribunal already.
At the same time, there was also other obvious loophole in the statement of the member.
That was my submission submitted to the “first tribunal”.
That was one submission of 2005. I indicated this point in my comment of October 2017.
6. The member of AAT had continuously been negligence of evidence of mine, was also contradicted with independent position claimed by the member.
** Based on the already wrong position, the member would not and could not justly and objectively verify the truth of the evidence and events involved.
The report from ACLEI will determine the basis.
7. The tribunal had made the conclusion using inaccurate and even incorrect information that was coming from the parties of “witness of truth”, who had been established in advance.
** All of those errors above had stemmed from the erroneous position and principle of the AAT member.
What matter outside the review hearing room was more important than it occurred inside the room.
The unilateral adoption of evidence also stemmed from the erroneous position of the member form when the first minute he was sitting in the room.
Grounds 1, 2, 3, 5 and 7, in substance, dispute the factual correctness of the material before the Tribunal and seek to argue the Tribunal should not have relied on it. The criticisms made by the applicant that the Tribunal’s statements were incorrect or inaccurate are not supported by any cogent evidence or argument. It was for the Tribunal to assess the material before it and to determine the reliability of that material and what weight should be placed upon it. It was for the Tribunal to determine the applicant’s credit. To the extent that the applicant claims that the adverse findings were illogical or unreasonable, for the reasons already given, the Court finds that those adverse findings in relation to credibility of the applicant and his wife were open to the Tribunal on the material before the Tribunal for the reasons given by the Tribunal as summarised above. No jurisdictional error is made out by grounds 1, 2, 3, 5 and 7.
In relation to ground 4, the applicant appears to complain that the Tribunal dealing with the issue of the applicant’s mental health was beyond the Tribunal's jurisdiction. It is apparent that the Tribunal did take into account the applicant’s mental illness and found that the applicant could not provide a satisfactory explanation for his conduct and omissions. The applicant did not raise any claims to fear harm by reason of his mental health. In those circumstances, ground 4 fails to make out in jurisdictional error.
Ground 6 appears to be a complaint in relation to the Tribunal’s approach to the evidence of Z. The Tribunal provided reasons for not making an enquiry with Z. The Tribunal was only bound to make an obvious enquiry in respect of an easily ascertainable material fact. The identification difficulty in identifying Z alone was a proper reason for the Tribunal to decide not to make contact with Z. The Tribunal’s decision not to take steps to contact Z cannot be said to make out any jurisdictional error. The decision of the Tribunal in that regard was not unreasonable. For the reasons given, the Tribunal was not under a duty to make any such enquiry. It was appropriate for the Tribunal to assess the credibility of the evidence before it and assess the weight to be placed upon it. The Court finds no jurisdictional error is made out by ground 6.
The Court notes the written submissions of the applicant described as comments on the first respondent’s submissions appear to advance a further argument in support of the grounds in the amended application. The submissions refer to misleading and false evidence and credibility. No misleading and false evidence has been identified by the applicant.
In relation to those submissions, for the reasons already given, the adverse findings were open to the Tribunal. Insofar as the submissions suggest there was a lack of evidence to support the adverse findings it was a matter for the Tribunal to assess the applicant’s claims and it was for the applicant to make out his claims. For the reasons summarised above the adverse findings were logical and reasonable. Nothing said by the applicant in the comments on the first respondent’s submissions or in the applicant’s written submissions make out any jurisdictional error.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 June 2018
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